Refugees and Asylum Seekers
 - Question

Baroness Chakrabarti: To ask Her Majesty’s Government what regular conversations they have with the Office of the United Nations High Commissioner for Refugees (UNHCR); and how this relationship informs (1) their policy on the interpretation of the Refugee Convention, (2) day to day operational policy for the protection of refugees and asylum seekers, and (3) their legislation.

Baroness Williams of Trafford: My Lords, the Home Office has regular and routine engagement with UNHCR on a number of matters, including through its quality protection partnership and as a standing member of the asylum strategic engagement group and decision-making subgroup. There are also additional ad hoc meetings to discuss individual policies and issues.

Baroness Chakrabarti: I am grateful to the Minister for that. She will appreciate that due to tragic events in recent days, our defence of the refugee convention is now totally inseparable from our defence of the Ukrainian people. Can the Minister comment on reports over the weekend that relatives of Ukrainians here in the UK have been denied visas? Can she assure us that the widest group with connections to this country will be welcome here and that no one—no one—will be turned back or criminalised on account of their means of escape?

Baroness Williams of Trafford: I can absolutely assure the noble Baroness that everything that we do will be aligned with the refugee convention. The Prime Minister and my right honourable friend the Home Secretary have made a number of statements this weekend to that very end: that we will do everything we can to help our friends in Ukraine.

Lord Cormack: Does my noble friend agree that tweeting should be a breach of the ministerial code?

Baroness Williams of Trafford: It is what you tweet.

Lord Paddick: My Lords, given that the UNHCR has criticised the UK’s response to the humanitarian crisis unfolding in and around Ukraine, why have the Government not allowed visa-free entry of refugees from Ukraine into the UK?

Baroness Williams of Trafford: As we speak, my right honourable friend the Home Secretary is outlining some of the further things we will be doing to help our colleagues and friends in Ukraine, as has the Prime Minister over the last 24 hours. This Question is about the UNHCR in relation to the refugee convention, and we do not think that anything in what we do breaches the convention.

Lord Hannay of Chiswick: My Lords, does the Minister not recognise that although it is very welcome that she says that the Government will be sticking by their obligations under the convention, it is not terribly convincing when they are simply marking their own homework? What does she have to say about the extremely detailed and well-argued views put forward by the United Nations High Commissioner for Refugees about the legislation we will be considering later today? Why should we accept her word rather than the UNHCR’s word? Surely, they know about their own convention?

Baroness Williams of Trafford: It is absolutely for the UNHCR to comment on our interpretation of the refugee convention, but it is for Parliament to determine our interpretation of it.

Lord Hylton: My Lords, is it not surprising that this Government are trying to legislate to enact their own interpretation of the convention without apparently consulting anyone else in the rest of the world?

Baroness Williams of Trafford: We do consult our partners, including the UNHCR.

Lord Alton of Liverpool: My Lords, the noble Baroness will have seen the reports over the weekend that maybe as many as 5 million people will become refugees from Ukraine. The UNHCR has estimated that maybe 1 million will go to Poland alone. She will have seen pictures of three-mile long queues of people trying to get out. I thank her for what she said already about the British Government’s response. Does she not agree that the Home Secretary should now call on all Interior and Home Office Ministers across the whole continent of Europe to come together to speak to one another about how they will deal with this unfolding crisis, which is adding to the more than 82 million people already displaced in the world today?

Baroness Williams of Trafford: I agree with the noble Lord that the crisis that is unfolding is horrifying in the extreme. Poland has been generous to a fault to its neighbours. We will assist with some of the humanitarian assistance in Poland and other places. Of course countries should come together to decide the best way forward for what is yet another humanitarian crisis.

Baroness Ludford: My Lords, the EU has said that Ukrainian refugees, who do not need visas to get into the Schengen zone anyway, can stay for three years without having to regularise their situation. I thought that the UK took back control in order to regulate better than the EU. Can the noble Baroness tell me what the UK will do better than the EU for Ukrainian refugees?

Baroness Williams of Trafford: It is a very peculiar word to use, to do “better”. We all need to do our part. I absolutely hear what the noble Baroness said about what the EU is doing. We will of course play our part.

Bishop of Durham: Can the noble Baroness offer us any other examples of alternative interpretations of the refugee convention worldwide? If not, on what basis does she believe the Government are entitled to do so in reference to Clause 11 of the Bill we will discuss later?

Baroness Williams of Trafford: It is up to states to interpret the refugee convention for themselves in line with the Vienna convention, which is a crucial part of it. There are examples across the world of states having interpreted in different ways but, as I said, it always has to be in line with the Vienna convention.

Baroness Jones of Moulsecoomb: My Lords, we heard from various Cabinet members over the weekend, including the Prime Minister, about the Government’s willingness to help Ukrainian refugees and all that sort of thing, but that is totally not what is happening. How come they can say that, which sounds like a blatant lie, when in fact the Government are doing everything they can to make it harder for refugees, including Ukrainian refugees, to come in?

Baroness Williams of Trafford: It is not about just willingness to help them; we will help them.

Lord Dholakia: My Lords, is the Minister able to indicate how many visas or entry clearances have been refused to Ukrainian citizens since the crisis started?

Baroness Williams of Trafford: The crisis is about 72 hours old, so I cannot say. I really do not know the answer so I will not pretend, but I am sure that, as the hours and days go on, the Government will have in place a system for helping refugees here and, do not forget, back in their home country. Ukrainians want to go back to Ukraine, and the best thing we can do for the whole global effort is to ensure that the war in Ukraine comes to an abrupt end.

Lord Rosser: What did the Government mean by the assurance that I believe was given to my noble friend Lady Chakrabarti? The assurance given in relation to Ukraine was that, whatever the Government did, it would be aligned with the refugee convention—I think those were the words. Is that aligned with the refugee convention in the same way the Government think the Nationality and Borders Bill is aligned with the refugee convention?

Baroness Williams of Trafford: The Nationality and Borders Bill is aligned with the refugee convention.

Lord Laming: My Lords, amid all the distressing news about what is happening in Ukraine and the movement of people across Europe, can the Government be particularly sympathetic to any children who get separated from their parents? We have seen some  awful photographs of children who are really very disturbed and distressed already. Can the Government make sure that they care for children who are separated from their parents?

Baroness Williams of Trafford: I commend so much what the noble Lord has said. At the heart of any Government with a heart will be those children who are displaced.

Baroness McIntosh of Hudnall: My Lords, in an earlier answer the Minister asserted, no doubt rightly, that the Government had consulted with the UNHCR, and by implication with other people, before bringing forward the legislation we are to consider later today. Can she give the House any examples of ways in which the Government’s original intentions for this legislation were changed or modified as a result of those consultations?

Baroness Williams of Trafford: Obviously, I will not go into the details of individual conversations, but we consulted with the UNHCR, as would be expected. Clearly, we did not come to the same conclusion as the UNHCR.

Baroness Sheehan: My Lords, the evidence of the horror unfolding in Ukraine on our TV screens over the last several days must surely put to bed once and for all the Government’s grotesque assertion that it is pull factors that attract refugees to seek asylum in Britain or anywhere else. Surely the Minister sees that the Government must do the decent thing and pull the abominable Clause 11 from the Nationality and Borders Bill, because they will be defeated when it comes to a vote in this House.

Baroness Williams of Trafford: I think we should separate out pull factors from those in war-torn countries who need our humanitarian protection. I do not think we should conflate the two things. These people desperately need our help, and they shall get it.

Crypto Currencies
 - Question

Lord Young of Cookham: To ask Her Majesty’s Government what assessment they have made of the use of crypto currencies in the United Kingdom.

Baroness Penn: My Lords, certain crypto assets offering new ways to transact and invest are part of a trend of rapid innovation in financial technology. However, these developments also present new challenges and risks, including risks to consumers and the financial system. In 2018 the Government established a Cryptoassets Taskforce, which is responsible for assessing developments in the crypto asset market. Her Majesty’s Treasury and UK authorities have taken a series of actions to support innovation while mitigating risks to stability, market integrity and consumers.

Lord Young of Cookham: I am grateful to my noble friend. While blockchain technology has much to commend it, with the UK being a world leader in financial technology, should not cryptocurrencies be subject to the same rules as other currencies? While many law-abiding citizens may have modest holdings of bitcoin, have not cryptocurrencies greatly facilitated the operations of blackmailers, drug dealers, fraudsters, tax evaders and terrorists, with crypto-based crime reaching an estimated $14 billion last year, as against nearly $8 billion the year before? What plans does my noble friend have to tame the beast?

Baroness Penn: My Lords, we are taking action to manage the most pressing risks from crypto assets. That includes including crypto assets in the most robust standards for money laundering and countering terrorist financing, and moving to regulate crypto asset promotions to ensure that they are held to high standards for fairness, clarity and accuracy.

Lord Browne of Ladyton: My Lords, crypto assets are used extensively for money laundering, as the Minister implied and the noble Lord, Lord Young, made clear. Since January 2020, crypto asset businesses in this country have had to comply with money laundering regulations and to be registered with the Financial Conduct Authority. Helpfully, the FCA has a list of approximately 30 businesses that are compliant and registered, but for some bizarre reason it also has a list of 200 or more companies that are non-compliant and not registered. Whatever the original reason for that, it seems to me to be a directory for kleptocrats, drug dealers and criminals to access some business that will not comply with the regulations. What are the Government doing about it, and about these businesses?

Baroness Penn: My Lords, if I understand the noble Lord correctly, he may be referring to the transition arrangements that were put in place following the inclusion of crypto assets into the anti-money laundering regime. That transition regime is due to expire on 31 March 2022, when all companies will need to be registered.

Lord Lee of Trafford: My Lords, given the worrying numbers of young people ignorantly speculating in cryptocurrencies, is there not now a compelling case to substantially increase the quality and quantity of financial education in our schools and colleges?

Baroness Penn: My Lords, financial education is something that the Department for Education looks at and, I believe, is supportive of. The noble Lord is right that more and more people are getting involved in crypto assets. That is why the Government took the decision to bring crypto assets into the financial promotions regime. One of the proposals in there is to limit the amount that any individual can hold in crypto assets.

Baroness Greengross: My Lords, I declare my interests as set out in the register as co-chair of the All-Party Parliamentary Corporate Responsibility Group, which last week heard evidence that the blockchain technology used to power cryptocurrencies is increasingly being used to ensure both security and transparency in  the supply chain. What steps are the Government taking to encourage research and investment in blockchain technology, which would mean that the UK could be a world leader in this area?

Baroness Penn: The noble Baroness is right that we should not forget the opportunities that the underlying technology for crypto assets present for businesses in the UK. The Government are very focused on that; for example, in financial services, we have announced a financial market infrastructure sandbox to support technological innovation in financial markets using that technology. That is something we want to learn from and build on.

Lord Bethell: My Lords, the financial sanctions on those supporting Putin may well lead to a flight to crypto among those trying to squirrel away their assets. Can my noble friend the Minister please reassure us that the regulations due shortly that will oversee these sanctions will have in them provisions for crypto?

Baroness Penn: Crypto assets are classed as funds or economic resources for the purposes of financial sanctions restrictions. Circumvention of financial sanctions by any means, including use of crypto assets, is a criminal offence.

Lord Tunnicliffe: My Lords, the FCA advice to customers, last updated on 18 June 2021, says:
“Before you invest in cryptoassets you should be aware of the following … cryptoassets are considered very high risk, speculative investments … if you buy these types of cryptoassets, you are unlikely to have access to the Financial Ombudsman Service (FOS) or the Financial Services Compensation Scheme (FSCS) if something goes wrong … if you invest in cryptoassets, you should be prepared to lose all your money”.
It is quite clear that this whole area of activity has the potential to go wrong. In going wrong, it could be very big—indeed, it could be so big as to impact on financial services in a systemic way. Which Government Minister is responsible for the monitoring and development of crypto assets tracking? What resources does that person have, and when can we expect appropriate reports and legislative proposals?

Baroness Penn: My Lords, that work would fall to the Cryptoassets Taskforce, which was set up by the Treasury, the Bank of England and the Financial Conduct Authority to look at the regulation of crypto assets as well as, for example, their implications for financial stability. Day to day it is the Economic Secretary to the Treasury who takes responsibility for these areas.

Baroness Kramer: My Lords, as soon as Russia invaded Ukraine, the Ukrainian Government announced that they could receive donations in bitcoin, Ether and Tether to help with their efforts, and raised over $10 million in the first 24 hours; it is a much larger sum now. So will the Government be slightly careful in what they do around closing down the crypto area? The Government of Ukraine have asked that all major DeFi—decentralised finance—exchanges are blocked to Russian-based transactions; something that is rather easy to evade. Will the Government support those exchanges in trying to put in place those blocks?

Baroness Penn: My Lords, I will take the noble Baroness’s latter point back to the Treasury. On her first point, she is absolutely right that, while we take steps to regulate the use of these assets, we also need to avoid unintended consequences or the stifling of innovation.

Baroness Altmann: My Lords, will my noble friend help the House understand the advantages of cryptocurrencies? I confess that I see plenty of disadvantages; this does not seem to be about investing but pure gambling, and the technology is based on anonymity and untraceability, unlike the banking sector. The environmental damage associated with the so-called mining of bitcoins itself undermines some of our COP 26 objectives. I would very much welcome the understanding that the Government have of why this is in any way positive rather than wholly negative for the economy and society.

Baroness Penn: It is probably worth trying to distinguish between different forms of crypto assets: unbacked crypto assets such as bitcoin can be highly volatile and speculative, and are therefore being regulated by the Financial Conduct Authority in terms of promotions; stablecoins tied to a reference asset could be used as a widespread means of payment and potentially deliver improvements in cross-border transactions; and the underlying blockchain technology could have a number of benefits, improving the efficiency of the settlement processes and reporting and enabling greater automation. So, it really is a question of a having a slightly more nuanced view of these different assets and regulating them appropriately.

Lord Foulkes of Cumnock: In one part of the United Kingdom, the Scottish National Party cannot make up its mind even on the existing currency and—if it were, unfortunately, to move towards independence—whether to accept the pound, move to the euro or go back to the groat. Is that not an extra reason why we should all be saying to Ms Sturgeon and her mob that they should concentrate on delivering services in the devolved areas and forget about their independence campaign?

Baroness Penn: My Lords, whenever the noble Lord stands up, I either strongly agree or strongly disagree with him; in this case, I strongly agree.

Public Health: Media Advertising
 - Question

Lord Brooke of Alverthorpe: To ask Her Majesty’s Government what plans they have to assess (1) the impact on public health of advertising in the media, and (2) whether the tax system regarding such advertisements could be restructured to improve both physical and mental health outcomes.

Lord Parkinson of Whitley Bay: My Lords, Her Majesty’s Government do not have plans for a comprehensive assessment of the impact of advertising on public health but are committed to assessing its impact in a proportionate way and in response to emerging evidence. For example, we will use a post-implementation review to assess the impact of forthcoming restrictions to the advertising of less healthy food and drink products on television and online. There are no current plans to review the tax treatment of advertising but the Government keep all taxes under review.

Lord Brooke of Alverthorpe: I am disappointed that the Government are not extending the review of the effects of advertising on health over a wider front; I hope that might be reconsidered. It is important that we take from the Chancellor’s move to a variable taxation on alcohol—in which the highest taxes are placed on those drinks with the highest element of alcohol and incentives are offered for lower taxes on those with lower alcohol—that advertising will be looked at in a similar way, particularly where advertising damages people, such as in the case of gambling and so on. Why do such advertisers not pay higher rates of tax than the present standard rate, which applies to all advertising? This is a way in which revenue could be increased and we could also seek to get behavioural change, which would be positive for the country.

Lord Parkinson of Whitley Bay: On gambling specifically, as the noble Lord will know, we are reviewing the Gambling Act and looking specifically at advertising issues as part of that. More broadly, we recognise that advertising can have an impact on public health, which is why we continue to keep that impact on all aspects of public health under review and will assess any emerging evidence in a proportionate and measured way. That is why, for instance, we are responding to evidence that children’s exposure to less healthy food-and-drink product advertising can affect what and when they eat. DCMS will of course continue to work with other departments, and the regulators as necessary, to keep the impacts of advertising on public health under review.

Baroness Boycott: My Lords, just 2.5% of all food and soft-drink advertising in the UK is spent on fruit and vegetables. Despite Change4Life and the 5 A Day campaign, obesity rates have risen sharply. Yet the relatively simple and extremely cost-effective act of banning advertising of HFSS food on the London Underground has, according to a report published just 10 days ago by the London School of Hygiene & Tropical Medicine, on 17 February, led to households buying 1,000 calories less a week of HFSS food—6.7% less than would have happened. Will the Government look at expanding schemes of this type and banning adverts for HFSS food? Will they also agree not to water down the excellent proposals in the forthcoming Bill to ban HFSS adverts in prime time on children’s TV?

Lord Parkinson of Whitley Bay: The Health and Care Bill introduces new UK-wide restrictions for the advertising of less healthy food and drink products, which are due to come into force from 1 January 2023.  The noble Baroness referred to the recently published evaluation of the advertising restrictions introduced by Transport for London, which we note were limited to outdoor advertising. We intend to look at and analyse that evaluation in more detail.

Lord Foster of Bath: My Lords, I declare my interest as chairman of Peers for Gambling Reform. The Minister made reference to gambling just a few seconds ago and will be aware that the gambling industry spends in excess of £1.5 billion a year on advertising and associated marketing. Does he believe that that improves or damages public health?

Lord Parkinson of Whitley Bay: As the noble Lord will know, I cannot pre-empt our review of the Gambling Act, which is looking at all these issues and taking evidence from many, including Peers for Gambling Reform. It is a thorough and evidence-led look at gambling regulation; advertising is an important part of that, and we will set out our response in a White Paper in due course.

Lord Vaizey of Didcot: My Lords, the Government remain committed to banning junk-food advertising as part of their drive to introduce more and more regulation. Can my noble friend assure me that he will have a discussion with his colleagues in the health department about the timing of implementing this ban, which is coming in at breakneck speed? It will be very damaging to the public service broadcasters, which of course his department supports very vigorously.

Lord Parkinson of Whitley Bay: Yes, I will speak to my colleagues in the Department for Health and Social Care, not least as the Bill is still before your Lordships’ House.

Baroness Bull: My Lords, there is good evidence that advertising that presents idealised and unrealistic bodies can drive negative body image and trigger or exacerbate mental health conditions, including eating disorders. Will the Government support the call for advertisers to be required to make it clear where images are digitally altered for commercial purposes?

Lord Parkinson of Whitley Bay: My Lords, we are aware of evidence which demonstrates a link between poor body and poor mental health, which can cause people anxiety, depression and many other harms. It is not currently the Government’s intention to legislate on body image in advertising. We want to make sure that any government intervention makes a real and positive difference. We intend to consult on this issue and the harms created by it as part of the online advertising programme, which will allow us further to develop our evidence base on this issue.

Viscount Colville of Culross: My Lords, the noble Lord, Lord Kamall, wrote to Peers saying that the Government intend to consider platform liability for ad content as part of the online advertising programme, which the Minister has just mentioned, but the consultations will not start until spring. HFSS advertising  on television has been under consultation since 2017. Why are the Government only now discussing platform responsibility for this ad content? Surely, they are just kicking this important issue into the long grass.

Lord Parkinson of Whitley Bay: My Lords, the advertising on television is a matter in the Bill before your Lordships’ House, which introduces a 9 pm watershed for advertising of less healthy food and drink products on TV and on-demand programme services which are under the jurisdiction of the UK and regulated by Ofcom. On advertising in other media, the Government intend to review how online advertising is regulated through the online advertising programme, as I say, but they are happening in different timeframes.

Baroness Merron: My Lords, while many adverts for tobacco products are banned in the UK and the EU, such restrictions do not apply in the same way to products containing nicotine. Can the Minister comment on why the McLaren Formula 1 team cars are able to carry the logo of the British American Tobacco Velo product range at the British Grand Prix when similar products cannot be promoted in other host countries, including Austria and France? Does the Minister feel that this is appropriate?

Lord Parkinson of Whitley Bay: The advertising and promotion of tobacco products was banned through the Tobacco Advertising and Promotion Act 2002. As the noble Baroness rightly alludes to, products and technology have moved on a lot in the intervening 20 years. An independent review into tobacco control, led by Javed Khan, is currently under way. This will help us ensure that future policies will be effective in meeting the Government’s smoke-free ambition.

International Development:  Sexual and Reproductive Health
 - Question

Baroness Sugg: To ask Her Majesty’s Government what plans they have to make investment in sexual and reproductive health and rights a priority in their International Development Strategy.

Lord Goldsmith of Richmond Park: My Lords, the Government will publish a new international development strategy this spring that will guide our work for the coming decade and beyond. It will align our development work with the aims and objectives of the integrated review and will continue to prioritise women and girls through support to educate girls, empower women and end violence, including by strengthening sexual and reproductive health and rights and working to end female genital mutilation.

Baroness Sugg: My Lords, UK investment in sexual and reproductive health not only promotes health and well-being across the whole of life but also leads to improvements in education, gender equality, political stability, economic development and, indeed, environmental sustainability, so it is a very worthwhile investment. Sadly, SRHR and family planning programmes are extremely disproportionately impacted by the cuts to UK aid. Can my noble friend the Minister reassure me that we will retake our place as a global leader on this issue, that SRHR will be an explicit priority in the upcoming strategy and that funding will be returned to previous levels of around 4% to 5% of ODA as part of the Foreign Secretary’s commitment to restore funding to women and girls?

Lord Goldsmith of Richmond Park: I thank the noble Baroness for her campaigning on this issue. Sexual and reproductive health and rights are central to achieving the UK Government’s manifesto commitment to end the preventable deaths of mothers, babies and children by 2030 and our ambitious commitments on girls’ education and Covid recovery. The Foreign Secretary has been clear that we will restore funding to women and girls. The UK plays a vital role in global partnerships and funds to support and strengthen the ability of countries to deliver life-saving maternal reproductive and child health services. We certainly regard ourselves as a world leader in this area and we will continue to be.

Lord Purvis of Tweed: My Lords, global donor support for reproductive health fell in 2020 by $100 million to the 59 low and middle-income countries. That cut was driven by the UK cuts. The place on earth that is the most unsafe for mothers and babies is South Sudan, which I have asked the Minister about before, where one in 10 babies dies before the age of five, but the Government are discussing a new round of cuts for health support for women and babies in South Sudan. If the Government are proposing to restore funding, why are they proposing to cut further in South Sudan? Will the Minister please intervene to make sure that this does not happen?

Lord Goldsmith of Richmond Park: My Lords, as I said, the Foreign Secretary has been clear that we are restoring funding to women and girls. I am not able to answer region-specific questions at the moment because that work is being done and until it has been completed and our spending review settlement translates into programmes on the ground, I am afraid I cannot go into the specifics.

Lord Collins of Highbury: My Lords, we know that the cuts this year have resulted in 9.5 million fewer women and couples receiving services. The noble Lord keeps repeating the assurances of the Foreign Secretary in terms of devoting resources to women and girls, but how much of that will be devoted to sexual and reproductive health? We want to know the answer.

Lord Goldsmith of Richmond Park: My Lords, we will know the answer, but we will not know it until the IDS is published and the allocations are made and the programmes are chosen. As a principle, the Foreign  Secretary has made clear that we are restoring funding and this House and the other House will be able to hold the Government to account against that promise.

Lord Deben: My noble friend has said that this is important in order to carry through the Conservative Party manifesto. In that manifesto we committed ourselves to 0.7% for overseas aid. We have cut that, contrary to both morality and our manifesto. When can we expect that to return and us to have the shame removed?

Lord Goldsmith of Richmond Park: My Lords, I start by saying something I have said many times: no one welcomes the cut from 0.7% to 0.5%. Notwithstanding that cut, we will have spent more than £10 billion on ODA in 2021. We will return to 0.7% as soon as the fiscal situation allows. Based on 2020 OECD data, the UK will be the third largest ODA donor in the G7 as a percentage of GNI. We will spend a greater percentage of our GNI on ODA than the US, Japan, Canada or Italy, and forecasts fortunately suggest that government will be able to return to 0.7% on aid in the final year of this spending review.

Lord Winston: My Lords, I wonder whether the Minister fully understands the impact of sexual and reproductive health in many parts of the world. There are large areas of the world where, if a woman is infertile, she does not have a roof over her head or a meal to eat; she has to abandon the family and is left completely without support. That is common and it is not just a matter of children and girls, but the education of a whole population and better infrastructure.

Lord Goldsmith of Richmond Park: My Lords, we fully understand the importance of this area. That is why the Foreign Secretary has made the commitment that she has, and why it appeared in the manifesto. SRHR means that women and girls can have control over their bodies and if, whether and when to have children, giving them the choice to complete their education and take up better economic opportunities. In turn, the children will likely be healthier and better educated. It is central to the effective delivery of a country’s universal health coverage. Good quality maternal and newborn health services and survival outcomes are often used as a proxy for the strength of an entire health system, so we fully understand the importance of this area.

Lord McFall of Alcluith: My Lords, we have a virtual contribution from the noble Baroness, Lady Masham of Ilton.

Baroness Masham of Ilton: My Lords, is the Minister aware that many countries have very inadequately staffed maternity services and pregnant women who have HIV can get stigmatised? Can the global fund help and make the situation better? Can the Minister ask it to do this?

Lord Goldsmith of Richmond Park: The noble Baroness makes an important point. Every year nearly 300,000 women die from pregnancy-related causes, 2.5 million newborns die in their first month and 2 million babies are stillborn. Most of these deaths are  avoidable with access to better health services to help mothers and newborns through pregnancy and delivery. The UK supports maternal and newborn health through global and country programmes, often integrated with wider work to strengthen health systems.

Baroness Armstrong of Hill Top: My Lords, last week I met young people who had been working on programmes on reproductive and sexual health with the International Citizen Service and VSO. That programme was pulled by the Government, meaning that hundreds of young people, here and in the developing country working with them, have now lost that opportunity to work on those issues and make a real difference in local communities. Will the Government commit to refunding that programme and making sure that VSO is able to continue the very valuable work it has been doing in this area?

Lord Goldsmith of Richmond Park: My Lords, funding levels for individual programmes across the FCDO will be confirmed after the departmental planning process taking place over the coming months has concluded. I am afraid that is the only answer I can give, but I will take the noble Baroness’s comments back to the FCDO, where I am absolutely certain they will be met with a nod of agreement.

Lord McDonald of Salford: My Lords, when I joined the Foreign Office in 1982, I learned that there were only two seasons in government: spring and autumn. The curious thing is that each can last for longer than six months. Once again, the Minister has said that the international development strategy will appear in the spring. Can he at least give us a month?

Lord Goldsmith of Richmond Park: I will go out on a limb and say that the IDS will be published within what is normally regarded as spring. I am afraid that I cannot give the noble Lord a date.

Baroness Sheehan: My Lords, improving sexual and reproductive health and rights is among the most cost effective of all development investments and would give personal, social and economic benefits, as well as helping to stabilise population growth and reduce poverty. I ask the Minister the same question as the previous noble Lord: when will the international development strategy be published and the Minister’s promises fulfilled?

Lord Goldsmith of Richmond Park: I refer the noble Baroness to my previous answer. I very strongly agree with her comments about the importance of family planning for a whole range of issues, including stabilising the populations of relevant countries.

Baroness Jenkin of Kennington: My Lords, how will the Government harness the expertise of international medical professionals within the SRHR programmes?

Lord Goldsmith of Richmond Park: Most of our programmes across the FCDO are delivered through trusted partners on the ground. Where we do not have the expertise, we look for it. Health is one of the most obvious areas where that is important.

Ukraine: Visa Restrictions for Refugees
 - Private Notice Question

Lord Hunt of Kings Heath: Asked by Lord Hunt of Kings Heath
To ask Her Majesty’s Government whether they will remove all visa restrictions for refugees coming from Ukraine.

Lord Sharpe of Epsom: My Lords, I am sure that the thoughts and prayers of your Lordships’ House are with all those in Ukraine. This Government stand with Ukraine. However, a visa waiver is not the solution to the challenges faced by Ukrainians. Visas are an important security tool. In addition, there are now no direct travel routes from Ukraine to the UK. The safest route for people to leave Ukraine is via neighbouring countries to the west. We have made changes to the immigration system to support both British nationals and their families in Ukraine, and Ukrainians in the UK. My right honourable friend the Home Secretary has announced additional support measures today.

Lord Hunt of Kings Heath: My Lords, that is a very disappointing response to the critical position which so many people face in Ukraine. Last week, the Prime Minister said that this country would do what it has always done and receive those who are in fear of persecution. So far, however, all that has been done is to allow immediate family members or fruit pickers to apply for visas. It has been a shameful response.
I believe that the Refugee Council spoke for the British people when it made a plea for the Government to immediately establish safe routes and to work with the EU and others. Will the Government take in those refugees without their having to apply for asylum?

Lord Sharpe of Epsom: I think it might be helpful to refer to some of the things that my right honourable friend the Home Secretary announced earlier today. She said:
“Ukrainian nationals on an existing points-based system route … can extend their leave in the UK … Ukrainian nationals on an existing visitor visa can exceptionally switch into a points-based system immigration route without having to leave the UK … Ukrainian nationals on an existing visitor visa can apply under the family route for further leave without meeting the immigration status requirement, provided they meet the requirements for leave based on exceptional circumstances … Ukrainian nationals on an existing seasonal worker visa will have their leave in the UK extended to 31 December 2022.”
The noble Lord also referred to some of the measures which have been taken with regard to families. I apologise for the long answer, but I will also say that we have surged staff to visa application centres in neighbouring western countries.

Baroness Meyer: My Lords, how is it that our Government keep talking about unwavering support for Ukraine, and how it is possible that we pride ourselves on doing more than any other European country? We are doing less to accept those people who are in crisis. Will the Minister do something to help them?

Lord Sharpe of Epsom: I thank my noble friend for that question. It is important to restate that this Government have done a hell of a lot to support Ukraine.

Noble Lords: Oh!

Lord Sharpe of Epsom: Objectively, they have. I also think it is important to emphasise again that visas are an important security tool. There are, unfortunately, a small number of people who, due to their connection to Russian intelligence services, for example, may represent a threat to UK national security. Security checks related to the visa application process assist in addressing this threat. I of course accept that there is a humanitarian crisis, but the appropriate route is via the visa application centres in neighbouring countries.

Lord Scriven: My Lords, the noble Baroness, Lady Williams, said at the Dispatch Box in an answer on the first Oral Question that it is about playing our part. Telling people fleeing Putin’s bombs to apply for a fruit-picker visa is not playing our part. What has stopped the UK Government acting with the same speed and compassion as the 27 EU countries in granting Ukrainians fleeing war asylum for three years without having to apply for a visa?

Lord Sharpe of Epsom: My Lords, I do not think it is fair to talk about fruit-picker visas. I would also point out that, as I have just said, there are no direct travel routes from Ukraine to the UK at the moment. The safest route for people to leave Ukraine is via neighbouring countries to the west. We have, as I say, searched after visa application centres. Dependents of British nationals resident in Ukraine who need a UK visa can apply through new temporary locations in Lviv or through a visa application centre in nearby countries, including Poland, Moldova, Romania and Hungary. We are setting up a new pop-up visa application centre in Rzeszow in Poland next week.

Lord Singh of Wimbledon: My Lords, the Bible says that we should be kind to strangers. Would the Minister agree that the policy of the Government in that respect is not in accord with Christian teachings?

Lord Sharpe of Epsom: I agree that we should be kind to strangers, and I am afraid I do not agree that the Government’s policy is not in accord with Christian teachings.

Lord Porter of Spalding: My Lords, while my noble friend must surely agree that we may be a world-leader in supplying defensive armaments to the  people of Ukraine, and no doubt a world-leader in supplying defence forces to train the defensive forces of Ukraine, he must also agree that we are now not a world-leader in looking after the people of Ukraine. We must allow those people to come here, without the bureaucracy that the visa system would add. These are genuine people, fleeing what is only to be described as terror in their own country. These are not economic migrants, spies or traitors. These are relatives of the people already living in this country, and we should make sure they can get here quickly and uninterrupted.

Lord Sharpe of Epsom: I thank my noble friend for that question. I have to go back to what I said earlier, I am afraid. We believe that visas are an important security tool. However, there are safe and legal routes for people to apply for visas.

Baroness Chakrabarti: My Lords, does the Minister remember that the reason we have a refugee convention in the first place is because we have been here before, with ships of Jewish refugees not being allowed to stop at any safe port? The Minister has said now at least twice that people should go west and claim in the first safe country. The Government repeatedly tell us that that is where they should claim asylum and that is where they should stay. How does that involve us doing our part?

Lord Sharpe of Epsom: I understand the point about ships, but there are no direct travel routes from Ukraine to this country at the moment. The safest route for people to leave Ukraine is via neighbouring countries to the west.

Baroness Butler-Sloss: My Lords, might I suggest to the Minister that it is not very difficult to get from Poland or Slovakia to England? Why cannot the Government, if they insist on using visas, set up an entirely separate system wherever anybody is trying to get to this country, so that they can be fast-tracked and not go through the main system?

Lord Sharpe of Epsom: I do not know how difficult it is at the moment to get from Poland to this country, but I take the noble and learned Baroness’s point. As I have already said, I am afraid the safest route is to apply is via the visa application centres.

Bishop of Durham: My Lords, I have every sympathy for the Minister trying to defend the indefensible. He has to do that; that is his job. However, what are we going to say to Poland and Moldova and all the other neighbouring countries about how we will take our share of those who will arrive in the first instance into their country but who they cannot support entirely on their own because they will need the support of other countries to the west, including ourselves?

Lord Sharpe of Epsom: I thank the right reverend Prelate for his sympathy. I do not know, unfortunately, what conversations will be had with those neighbouring countries, but they must, by definition, be ongoing.

Lord Coaker: My Lords, I think most people in this country will be baffled by the response of the Minister and upset by the fact that the Government have not got a grip of the refugee crisis that faces Europe. We have been proud of the way our Government have acted to support Ukraine, but hundreds of thousands of people are fleeing across the border and the Minister has simply turned round and said that there is no safe route for them to get here. It is not good enough. Families need a reunification programme, and we should set an example to the rest of Europe—the way we have done with the rest of the Ukraine crisis. It is not good enough. The Government need to get a grip and give us something to be proud of.

Lord Sharpe of Epsom: I thank the noble Lord for that. On the family side, we are allowing Ukrainian family members, settled persons or British nationals to come to or remain in the UK where they would otherwise not meet the core requirements of the family rules. We will make applications under the family rules fee-free for this cohort. This will mean applicants will be exempt from the immigration health surcharges, as well as visa fees. There will be a pathway to settlement if they are unable to return to Ukraine when their leave expires, and department officials will be reaching out to the Ukrainian diaspora in the UK, seeking their support to house and support Ukrainian family arrivals. This is one of the most generous family reunion offers that we have ever made to any country in the world, demonstrating our firm commitment to the people of Ukraine.

Lord Paddick: My Lords, the Minister says that visas are an important security tool. Can he say whether, if I was a Ukrainian settled in the UK and I had elderly parents—say, in their 90s—in Ukraine right now, they would have to apply for a visa to come to the UK in the normal way? Yes or no.

Lord Sharpe of Epsom: It is not a simple yes or no question, as the noble Lord knows. There are safe and legal routes, as I have tried to explain, via the visa application centres and via the family reunion rules that have been announced.

Lord Austin of Dudley: My Lords, I have listened carefully to the Minister’s answers, but last night the Prime Minister joined a mass at a Ukrainian church in London and said that thousands of refugees would benefit from the suspension of normal visa rules in the light of the humanitarian crisis developing in Ukraine. How does that square with the answers the Minister has given this afternoon?

Lord Sharpe of Epsom: I answered partially that question earlier, when I talked about the announcements that my right honourable friend the Home Secretary has made. I will not run through those again, but I think it does square with them. I appreciate the points the noble Lord was making.

Baroness Finlay of Llandaff: My Lords, the First Minister of Wales has said that Wales should be a country of sanctuary. What discussions are the Government having with Wales to allow Welsh people  who can vouch for somebody coming from Ukraine to come in, particularly when those families in Wales are prepared to provide financial support for travelling and so on?

Lord Sharpe of Epsom: I am afraid I do not know what conversations are being had with the devolved Administrations, but I would imagine they are ongoing in the normal way.

Lord Alton of Liverpool: My Lords, will the Minister remind the House of the figures that were given to your Lordships during consideration of the Nationality and Borders Bill about the number of people who are currently in our system and whose asylum claims have not yet been settled, and how long it normally takes for a visa to be processed and expedited through our system?

Lord Sharpe of Epsom: I am afraid I do not have those statistics to hand. I will have to write to the noble Lord.

Baroness Bennett of Manor Castle: My Lords, I want to follow on from the question of the noble Lord, Lord Paddick, about Ukrainians who are settled here with elderly parents. I think there is a lack of clarity about this. There seems to be some provision if those parents need care, but of course a technical provision of needing care under some kind of medical provision is different from a confused older person who is extremely unsafe and just needs their family. Will people in that situation be allowed to come to the UK and stay in the UK? Will their families be able to go and pick them up from wherever they are in Europe and bring them here safely?

Lord Sharpe of Epsom: I thank the noble Baroness for that question. I can only refer back to the answer I gave earlier on family concessions. My understanding is that those things will be dealt with under those rules.

Baroness Symons of Vernham Dean: My Lords, the Minister will have noted the general dissatisfaction of the House with the answers he has given to all the questions. Some questions he did not know the answer to; to others, he has given very sparse answers. Will he undertake to report back to his colleagues and try to come back next week to give us more satisfactory responses, after the wide range of discomfort and dissatisfaction there has been with his answers today?

Lord Sharpe of Epsom: I reassure the noble Baroness that I will most certainly be doing that.

Baroness Watkins of Tavistock: My Lords, can the Minister explain the Government’s stance on preparing accommodation for those whom we will eventually allow to come from Ukraine, after the rather unsatisfactory approach to accommodation for those who have come from Afghanistan?

Lord Sharpe of Epsom: I cannot answer that at this stage. As I said, we will be reaching out to members of the Ukrainian diaspora to seek their help and support with this, but beyond that, I am afraid that I cannot go.

Baroness McIntosh of Pickering: Will my noble friend confirm that, under the provisions of the Nationality and Borders Bill before us this afternoon and later this week, the Government will not seek to arrest and prosecute Ukrainian refugees who may happen to arrive on boats from northern France?

Lord Sharpe of Epsom: The noble Baroness asks me to stray into territory we will be visiting later, and I am afraid I cannot do that.

Lord Purvis of Tweed: One of the answers the Minister struggled with before was confirming that it is relatively easy to get from Poland to the United Kingdom at the moment. There are more than 670 flights a week from Poland to the UK; a simple check on Skyscanner can confirm that. Will he please confirm one thing: that Ukrainian people fleeing—even to join their family, as my noble friend said—will not be charged £95 and will not have to wait in a long process? Please can he confirm that there will be an expedited process and it will not cost a penny?

Lord Sharpe of Epsom: The noble Lord has obviously had better access to Google in the past few minutes then I have, so I apologise for being unable to answer the earlier question on flights because I did not know the answer, but I have said that under the family reunion rules, that will be fee-free for this cohort.

Marriage and Civil Partnership  (Minimum Age) Bill
 - First Reading

The Bill was brought from the Commons, read a first time and ordered to be printed.

Pension Schemes (Conversion of Guaranteed Minimum Pensions) Bill
 - First Reading

The Bill was brought from the Commons, read a first time and ordered to be printed.

Tax Credits, Child Benefit and Guardian’s Allowance Up-rating Regulations 2022
 - Motions to Approve

Baroness Penn: Moved by Baroness Penn
That the draft Regulations laid before the House on 17 January be approved.
Considered in Grand Committee on 23 February.
Motions agreed.

Immigration and Nationality (Fees) (Amendment) Order 2022
 - Motion to Approve

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
That the draft Order laid before the House on 12 January be approved.
Considered in Grand Committee on 23 February.
Motion agreed.

Nationality and Borders Bill
 - Report (1st Day)

Amendment 1

Baroness Lister of Burtersett: Moved by Baroness Lister of Burtersett
1: After Clause 4, insert the following new Clause—“Provision for Chagos Islanders to acquire British nationality (1) Part 2 of the British Nationality Act 1981 (British overseas territories citizenship) is amended as follows.(2) After section 17H (as inserted by section 7), insert—“17I Acquisition by registration: descendants of those born in British Indian Ocean Territory(1) A person is entitled to be registered as a British overseas territories citizen on an application made under this section if they are a direct descendant of a person (“P”) who was a citizen of the United Kingdom and Colonies by virtue of P’s birth in the British Indian Ocean Territory or, prior to 8 November 1965, in those islands designated as the British Indian Ocean Territory on that date.(2) An application under this section must be made before the date specified in subsection (3).(3) The specified date means—(a) in the case of a person aged 18 years or over on the date of coming into force of this section, five years after the date of coming into force of this section, or(b) in the case of a person under the age of 18 years on the date of coming into force of this section or born within 4 years of that date, before they reach the age of 23 years.(4) A person who is being registered as a British overseas territories citizen under this section is also entitled to be registered as a British citizen.(5) No charge or fee may be imposed for registration under this section.””Member’s explanatory statementThis amendment would allow anyone who is descended from a person born before 1983 on the British Indian Ocean Territory to register as a British overseas territories citizen. They may also register as a British citizen at the same time. Both applications would be free of charge. The application must be submitted within 5 years, or in the case of a minor born before the date of coming into force or born within 4 years of that date, before they reach 23 years old.

Baroness Lister of Burtersett: My Lords, in moving Amendment 1, I am grateful to my fellow signatories; to BIOT Citizens and Chagossian Voices for their assistance; to the APPG on the Chagos Islands, of which I am a member; and to all those noble Lords  from across the House who supported a similar amendment in Committee. The breadth and strength of that support reflected the recognition that this amendment is about rectifying a long-standing injustice in citizenship law, just as earlier, welcome clauses in the Bill do.
The injustice that Amendment 1 addresses concerns the descendants of Chagossians, who were all evicted from their homeland by the British Government to make way for a US airbase back in the 1960s and early 1970s, and who remain exiled. Those descendants are now denied the right to register as citizens, which they would have had were they still resident in their homeland. The reason they are denied that right is because they are no longer so resident, but that is because they have been exiled from that homeland by the British Government.
The amendment would simply end the “appalling injustice”, as Conservative MP Henry Smith put it. To allay government concerns about the open-ended nature of his Commons amendment, which received considerable support, this one applies a five-year time limit for registration. The consequences of the injustice include broken families, divided communities, insecurity for those living here who are undocumented, hardship and the aggravation of the trauma associated with exile.
To give one example, provided to me by Chagossian Voices, S, born in Mauritius, is the son of a Chagossian who is British by descent and is now in exile in Crawley. S has lived in the UK since the age of eight. When he turned 18, his mother used her meagre savings from her job as a cleaner to apply for his British citizenship; this was rejected, but he was then granted a limited visa, which has now expired. She cannot afford to reapply and fears that her son could be deported at any time. “I am terrified of my family being split up”, she says. This cannot be right.
What this means to Chagossians has been made painfully clear to me in emails I received following Committee, and I think, too, to the Minister, who very kindly met some of us, including Rosie Lebeck of BIOT Citizens last week. In Committee, the Minister expressed her sympathy and empathy, and I believe that she genuinely understands what is at stake here, but that has not yet been translated into the actions needed to remedy this injustice. Instead, she pointed to how some second-generation Chagossians would benefit from the earlier clauses in the Bill, which address discrimination in nationality law. When questioned, neither she nor her officials could say how many that would be—I suspect not many.
The Minister has also spoken about how the Government are looking at what more can be done to help Chagossian families seeking to settle here, but we have been given no details of what that might mean and, in any case, that is to ignore once again the importance of citizenship—a theme running through many of our debates in Committee. She also talked about a willingness to consider how the £40 million fund set up to support Chagossians settled in the UK might be used, but that fund was announced more than five years ago and, to date, I understand that only £800,000 has been spent. Certainly, some of the fund could be used to defray any costs associated with this amendment, but it is no substitute for it.
We come to the nub of the matter. In Committee, the Minister reiterated the Government’s concern that the amendment would be contrary to long-standing government policy and warned that it goes further than the rights available to many other descendants of British nationals settled elsewhere around the world—but how many of those other descendants are settled elsewhere because they have been forcibly exiled by the British Government? None, I would suggest. As a junior Minister in the Commons acknowledged, the Chagossians’ case is unique, yet the Government appear terrified that to concede on this amendment would create a precedent, despite there being no other group in this situation. Why can they not follow the advice of the noble Baroness, Lady Falkner of Margravine? In Committee, the noble Baroness suggested that the Minister needs to make it clear in the response today—it may not be her response; it may be his response—that he or she
“does not intend this Act—a humanitarian Act—to set a precedent”.—[Official Report, 27/1/22; col. 494.]
In conclusion, no one knows for sure how many Chagossians would avail themselves of the right contained in this amendment, but the best estimate, based on a census carried out by BIOT Citizens, is no more than 1,000. That said, this is not a question of numbers but of finally putting right what everyone accepts is an injustice. I hope that we will take the opportunity provided by the Bill to end this injustice. If the Minister does not accept the proposed new clause or offer to come back with an alternative at Third Reading, I shall beg to test the opinion of the House. I beg to move.

Baroness Whitaker: My Lords, as vice-chair of the All-Party Group on the Chagos Islands, I will add one brief point to the amendment so persuasively moved by my noble friend. If resettlement had taken place following the High Court ruling of November 2000 that the ordinance banning the Chagossians’ return was unlawful, it would have much reduced the need for an immigration route to the UK. Her Majesty’s Government should lift that ban immediately, in addition to accepting my noble friend’s amendment. The recent Mauritian expedition helpfully showed that there is no reason why the Chagossians should not return to their homeland. Some will probably want to do that rather than come to the UK, which would much diminish the apparent problem that the Government have.

Baroness Butler-Sloss: My Lords, I sat as a judge in one appeal on the Chagossians and learned about the disgraceful behaviour of successive Governments of all political views—not, I have to say, the Lib Dems because they were not in power, but certainly the Conservatives and Labour have each left the Chagossians to their fate. One appalling thing they did was take an agreement from them whereby they signed away their rights for some paltry sum, such as £1,500. It is time that at least some of these Chagossians got some rights. As the noble Baroness who moved the amendment pointed out, this situation is unique. Therefore, the Government really should be generous and understanding and do something to repair the appalling damage done in the past by this Government, as well as the previous Labour Government.

Baroness Ludford: My Lords, I recognise that the Bill removes discrimination against those, including some descendants of Chagossians, unable to claim previously through their mothers or unmarried fathers. But with this amendment we are talking about a limited number of people, in the hundreds—maybe 800 to 1,000—who, as descendants of Chagossians evicted from the islands, will still have no rights to British overseas citizenship and, in due course, British citizenship even with Part 1, even though they would have that right if they had not been evicted. In Committee, the Minister’s only answer was that
“offering this right is contrary to long-standing government policy.”—[Official Report, 27/1/22; col. 497.]
That position does not take into account the exceptional nature of what happened to the Chagossians. No other British Overseas Territories citizens suffered this fate. Chucking out colonial subjects in the modern age was also, I hope, contrary to good government policy. If an exception could be made for the Chagossians then, one can be made now.

Baroness Jones of Moulsecoomb: My Lords, in Committee there seemed to be some representations from noble Lords who did not know about the plight of the Chagos Islanders; they were hearing about it for the first time. There is so much injustice in the world that it is very difficult to keep track of all the consequences of British and American imperialism, but it is one of the beauties of your Lordships’ House that any of us can table amendments that can be debated and discussed. I say a big thank you to the noble Baroness, Lady Lister, for debating this issue and for her powerful speeches on this cause. Having had the issue raised in Committee, and now again on Report, no one can claim ignorance of this real injustice. We have to take action. It is time for the United Kingdom to make reparations for forcing changes on the Chagos Islanders. This amendment is the beginning of that process and the Greens support it completely.

Baroness Altmann: My Lords, I commend the Government, in that this Bill seeks to remedy some long-standing injustices and discrimination in British nationality law. That is why I am so sad that there has been a refusal so far to accept this amendment. The Chagossians are the only category of British Overseas Territories citizens who were expelled and excluded from the British territory in which they lived by the British Government themselves in modern times. I commend the BIOT Citizens group, the noble Baroness, Lady Lister, and my honourable friend Henry Smith in the other place, who called this an “appalling injustice”. He is right.
As others have said, this is a unique case and it sets no precedent, but unfortunately the Government seem to be relying on the cause of the injustice to refuse to remedy that same injustice. I know my noble friend is sympathetic and has empathy with the situation that these good people find themselves in. In his response, could he explain why the Government are refusing, without simply saying that this sets a precedent? Clearly, it does not. There is no other group in this situation. If there is, could the Government enlighten us as to who  that group might be? Knowing that this situation arose as a result of Britain wanting to support the United States in the Cold War, and, at this time, as we face global perils, today would be a timely opportunity to remedy this injustice. It is an enormous injustice in terms of the Chagossians’ lives, but tiny in the scope of this Bill. Action would show that we recognise our responsibilities to people we have wronged in the past.
This amendment is wholly reasonable. The noble Baroness, Lady Lister, has tried again and again to change the wording to include stricter time limits, accommodate the Government’s concern and reach some kind of compromise. So I hope my noble friend will be able either to accept it or commit to coming back with the Government’s own amendment at Third Reading. Otherwise, I shall, in good conscience, vote in favour of this important amendment.

Lord Ramsbotham: My Lords, I strongly support Amendment 1, to which I have added my name. I declare an interest as a vice-chairman of the Chagos Islands (British Indian Ocean Territory) All-Party Parliamentary Group. How do the Government have the neck to condemn others for far less, while at the same time standing condemned by both the International Criminal Court and the General Committee of the United Nations for refusing to allow the Chagos Islanders and their descendants citizen rights to return to their homeland, despite promises that they would be allowed to do so after 30 years? I remember, as long ago as 2013, reading out a letter from a Pentagon Minister to the then Foreign and Commonwealth Office Minister saying that the Pentagon had no objection to the return of the islanders to Diego Garcia, being used to having indigenous people living alongside island military bases in the Pacific.

Lord Horam: My Lords, I must correct the noble Baroness, Lady Butler-Sloss, in one regard: the Lib Dems could have done something about this when they were part of the coalition Government. I am not particularly pointing to the Lib Dems: we are all guilty of the shame of what has happened to the Chagos islanders. All three parties, I am afraid, have done nothing to deal with the dreadful situation the Chagos islanders find themselves in as a result of successive Governments of all parties. I hope that my noble friend the Minister—he is having a hard time today, now having to answer this question as well as previous ones, and I really do feel sorry for him—can offer us some hope in this matter today.
My noble friend Lady Williams explained when we discussed this issue previously that the problem is that what we are asking for runs counter to long-standing government policy. However, the truth is that we ourselves created this situation. Surely, long-standing policy should be flexible enough to deal with a problem which we ourselves created. There is no group of people other than the Chagossians in this situation, and that is why we have to be flexible. I know that the noble Baroness, Lady Lister, has looked again at this amendment and drawn it ever more tightly, so that fewer additional problems can arise. I commend her on that effort.
We know from events such as the Windrush scandal that issues such as this are a matter not just of law but of how individual cases are handled in Home Office  administration. I do not criticise that administration because I know from my own experience as a Member of Parliament how difficult such cases can be to deal with, and I often sympathise with it regarding the decisions it has to make. However, I would like the Chagossian community to be given some particular form of access to government. Perhaps an officer should be allocated to deal with their problems on a regular basis, so that there is a point of contact in the Home Office whom they can go to as a matter of course. I found during my previous experience as a Member of Parliament that this can make a huge difference to those who often simply want to contact in an easy and friendly way people who understand their problems, having been long versed in them.
I hope that my noble friend the Minister can give us some succour on this administrative issue, as well as on the legal matters. This issue is not going to go away.

Baroness Verma: My Lords, I declare my interests as set out in the register. This would be absolutely the right thing to do at this time, in order to demonstrate UK leadership. When it comes to long-standing government policy, we are a democracy and we should evolve, and policies should evolve with it. These people deserve our support in being given the right to go back to their homes. If we are to have any standing in the world, let us show that leadership today.

Lord Mackay of Clashfern: My Lords, this is a unique situation. These islanders were forced out of their homes not because of any objection to them, but to facilitate the development of bases desirable, perhaps, rather than necessary, in war. They have done nothing wrong and would be entitled, were they still there, at this level, to the citizenship which the Act gave them. The only reason they are denied it is that they are not now living where they would be, had they been left at home. That cannot in any way be imputed to their blame or against them in desiring to get what they would have otherwise had.
I want to understand what this long-term government policy is. Is it that people who have been damaged by activities of that kind should not be recompensed, or is it some other policy? Unless and until this extended government policy is explained, it is hard to see what sort of policy worthy of the name could be applied to making a refusal in this situation. It is difficult for those of us who are old enough to carry responsibility for what the Government did, but more difficult still to carry responsibility for what the Government are now apparently refusing to do.
If there is anything wrong with the drafting of the amendment—I am not conscious of it, but it may be pointed out—I see no reason why the Government should not extend this until Third Reading and correct any mistake. As I say, I do not see anything wrong with it, but I am always subject to being corrected and therefore I leave that open for my noble friend the Minister to deal with.
The real essence of it is that these people were put out of their homes for reasons that had nothing to do with any deficiency, damage or ill-considered action on their part. Nobody has suggested that they did  anything wrong, and I find it very difficult to see why they should not get the benefit of what they would have had if they had not been wronged.

Lord Cormack: My Lords, I rise very briefly to say a few words in tribute to one of the most remarkable parliamentarians I have ever known and one of the best friends I have had in my time in Westminster: the late, great Tam Dalyell. He was on to this before anybody. He campaigned publicly and in the House of Commons. If he is looking down on your Lordships’ House as we debate this afternoon, I think he will have a thrill of satisfaction having heard the speeches we have just heard, particularly that of my noble and learned friend Lord Mackay of Clashfern.
It is never too late to put right a wrong. It is never too late to offer justice to those to whom it has been denied. It is incumbent on any Government who value their own self-respect to put right this wrong. I had to hear my noble friend’s other answers from the Bar of the House. I sympathise with him; he has drawn not one but two short straws today, and he is a new Minister, but he will earn enormous credit from your Lordships’ House if he is able to get up and say, “Yes, this is an overwhelming moral argument. Yes, I accept the justice of it. Yes, I will take it away, talk to my ministerial colleagues and come back with something satisfactory”—although, in my view, this is satisfactory—“at Third Reading”. If he does that, I know the noble Baroness who moved the amendment will be satisfied; she is indicating that she will. If he cannot do that, I hope she divides the House and I will be with her.

Bishop of Durham: My Lords, I hold my hands up: I am one of those who, as the noble Baroness, Lady Jones of Moulsecoomb, mentioned earlier, did not know much about this issue before we started this debate. However, I followed it and pay tribute to the noble Baroness, Lady Lister, for the way in which she has led this. It is quite clear that it is completely unjust and needs to be dealt with. I hope that the Minister has noted that, while in most debates, many of us around this House and the noble Lord, Lord Horam, will not agree, we agree on this one completely—100%. There is no justification for anything other than accepting this amendment.

Lord Paddick: My Lords, to assist the House to move swiftly on to votes, we on these Benches will try to restrict ourselves to one speaker who will speak for us all, unless we are provoked by subsequent contributions. I say to the noble Lord, Lord Cormack, that it is rather unfair to the Minister—particularly as he is a new Minister—to ask him to deviate from his script. However, we agree with my noble friend Lady Ludford and with all other noble Lords.

Lord Rosser: My Lords, my noble friend Lady Lister of Burtersett has set out the background to and purpose of this amendment. As we know, currently only those born on the islands and the first generation born in exile have the right to British Overseas Territories citizenship and, therefore, to British citizenship. As a result, families have been broken up and communities divided. Some members have access to citizenship rights while others do not.
In the Commons, as has already been commented on, the Government accepted, on 4 November last year during the Committee stage of the Bill, that the Chagossians presented a unique case. By Report Stage in the following month, however, the Government seem to have decided that the Chagossians were no longer a unique case, because going down the road proposed,
“would undermine a long-standing principle of British nationality law … under which nationality or entitlement to nationality is not passed on to the second and subsequent generations born and settled outside the UK and its territories”.—[Official Report, Commons, 7/12/21; col. 258.]
The reason that the small number of Chagossians in question do not meet this condition is because they are descended from people who were evicted against their will from a British overseas territory. That is why they are unique, as the Government have already conceded. They did not leave of their own free will to settle elsewhere: they were kicked out—forcibly evicted. There would be no precedent set by agreeing to this amendment. In effect, the Government are using, in support of their case to deny these Chagossians the right to British citizenship, the cause of the very injustice which this amendment seeks to address. We support this amendment, and it would appear that we are far from the only ones in this House to do so.

Lord Sharpe of Epsom: My Lords, I thank all noble Lords who have spoken in this debate. I also thank the noble Baroness, Lady Lister, for meeting my noble friend Lady Williams last week and for the opportunity to hear further about the issues impacting the Chagossian community. As has been said previously, both in Committee and when my noble friend met the noble Baroness, Lady Lister, last week, and as noted by my noble friend Lady Altmann, the Government empathise and sympathise with the Chagossians about how they were treated in the 1960s and 1970s.
It is, however, important to clarify who this amendment seeks to assist. It is not those Chagossians who were of the generations born on the British Indian Ocean Territory, as they have always been British nationals and have been automatically considered both British Overseas Territories citizens and British citizens since 2002. Similarly, it is not their children, the first generation of Chagossians born outside of British territory, who are also both automatically British Overseas Territories citizens and British citizens. It is also not those in the first generation of Chagossians born outside of British territory, who, as the Chagossian community highlights, have missed out on rights to British nationality due to historical legislative unfairness, and this Bill already seeks to rectify that issue.
This amendment is limited to those in the second and successive generations of Chagossians born outside of British territory who, like all children of British nationals by descent, face a different route to British nationality. For this generation, if they wish to acquire British nationality, it is right that they must establish a close, continuing connection with either the UK or a British overseas territory by lawfully residing and settling there, although I recognise that since the 1970s, it has not been possible to establish such a link to the British Indian Ocean Territory. This must be in line with  either the UK’s or an overseas territory’s Immigration Rules. This has also been the case with Hong Kong British Nationals Overseas, who do not have a right of abode in British territory and must complete a period of residence in the UK before acquiring the permanent residence status that is required in order to naturalise as a British citizen.
The points raised by the descendants of Chagossians, who are members of the second generation born outside British territory and who are now seeking to settle in the UK under the Immigration Rules, are often very complex. As the Minister for Safe and Legal Migration has stated in the House of Commons, the Home Office is keen to consider what more we could do to support those families seeking to settle here under the current system.
The Home Office is actively engaging with the Chagossian community to identify practical proposals that would support the second generation born outside British territory in navigating the system. In addition, the Home Office is discussing with the FCDO how the £40 million Chagos support fund, referenced by the noble Baroness, Lady Lister, could be used to deliver further support for Chagossians seeking to settle here under the Immigration Rules. Those discussions are current and ongoing, and I had some this morning.
As the Government have consistently stated, allowing entitlements to—

Baroness Altmann: I thank my noble friend for giving way. Can I ask him to confirm that, had the grandparents of these individuals not been expelled against their will from their islands, these people would now be entitled to the citizenship we are currently denying them?

Lord Sharpe of Epsom: I think I have already answered that question. It is to do with the generations born outside British territory, so yes.
As the Government have consistently stated, allowing entitlements to citizenship to be passed on beyond the first generation born outside the British territory, bypassing requirements to reside and settle here by those who do not have a continuing connection with the UK, would unfortunately undermine a key principle in British nationality law that applies to all other descendants of British nationals born abroad.
I recognise that the noble Baroness’s amendment has sought to limit the right to register as a British national to current generations who must apply within a limited timeframe. However, this does not alleviate the Government’s concern that offering this right is contrary to long-standing government policy and goes much further than the rights available to many other descendants of British nationals settled elsewhere around the world today.
I finish by saying that I have listened very carefully to this debate, and I realise I am something of a lone voice.

Baroness Butler-Sloss: I apologise to the Minister, but could I ask him to deal with this unique position? There is, as far as we know, no other group of people  who have been evicted as they have and have not been allowed to go back. They are in a special position, but the noble Lord is not even dealing with that point.

Lord Sharpe of Epsom: I can only deal with it by extension, which is to say that it would be contrary to long-standing government policy to even deal with it.
I have listened very carefully to this debate. I have taken on board what the right reverend Prelate the Bishop of Durham has said about broad agreement—of course I have, and I will take it back to the Home Office. I will also take my noble friend Lord Horam’s suggestion back to the Home Office about dedicated support within the department, which strikes me as a very sensible suggestion. I am afraid that I am going to earn no credit with my noble friend Lord Cormack, because I invite noble Baroness to withdraw her amendment.

Baroness Lister of Burtersett: My Lords, I thank all noble Lords who have spoken. I think it is unusual to have more support from the Government Benches than from any other Benches—and very strong support it has been.
The two interventions really put their finger on how the poor Minister—I am afraid he is making a face—did not address the fact that this is a unique case, as the noble and learned Baroness, Lady Butler-Sloss, said. As the noble Baroness, Lady Altmann, said, if their grandparents had not been forcibly evicted and kept in exile, these people would probably still be living on the Chagos Islands and be entitled to British citizenship. It is citizenship that they want. Certainly, the Chagossians who have been in touch with me are desperate to be seen as citizens; they do not want to come through some intricate way of dealing with the Immigration Rules—that is not what they are seeking.
I am sorry that the Minister has not addressed the key issues here. The noble and learned Baroness, Lady Butler-Sloss, described successive Governments as demonstrating “disgraceful behaviour”. As the noble Lord, Lord Horam, said, we all, in terms of our political parties—not the Green Party, but all the others—have responsibility here. This is our opportunity to put this injustice right. I wish to seek the opinion of the House.

Lord Mackay of Clashfern: My Lords, the Minister has said that he would take it back. It may well be that if he takes it back—

Noble Lords: No!

Baroness Lister of Burtersett: The Minister said that he would take it back, but not with a view to bringing it back at Third Reading. Therefore, I must test the opinion of the House.
Ayes 237, Noes 154.

Amendment 1 agreed.

  

  


  
Clause 7: Citizenship: registration in special cases

Amendment 2

Lord Russell of Liverpool: Moved by Lord Russell of Liverpool
2: Clause 7, page 9, line 36, at end insert—“(1A) In section 1 (acquisition by birth or adoption), in subsection (5)—(a) in paragraph (a), for “minor” substitute “person”, and(b) after paragraph (b), for “that minor shall” substitute “that person or minor (as the case may be) shall”.”Member’s explanatory statementThis amendment seeks to bring British nationality law in line with adoption law in England and Wales. In those nations, an adoption order made by a court may be made where a child has reached the age of 18 but is not yet 19. Yet such an adoption order currently only confers British citizenship automatically where the person adopted is under 18 on the day the order is made.

Lord Russell of Liverpool: My Lords, your Lordships will be delighted to know that I will be extremely brief in moving Amendment 2. I thank the noble Baroness, Lady Hamwee, who moved this amendment in Committee in my absence when I was laid low by some lurgy that has thankfully now gone. I declare that I am a governor of Coram, the children’s charity; this includes the Coram Children’s Legal Centre and CoramBAAF, which has been quite involved in briefing for this amendment. I am pleased to tell the House the good news that, amazingly, we have made some progress between Committee and Report.
The amendment highlights an anomaly in that British nationality law is not in alignment with adoption law in England, Wales and Scotland. A very small number of children have fallen foul of a Catch-22 situation whereby the automatic right to UK nationality has been denied them. This is because, while the adoption proceedings began before their 18th birthday, the adoption was not ratified until after. The noble Baroness, Lady Hamwee, Edward Timpson from the other place, the Immigration Law Practitioners Association, the two parts of Coram that I referred to earlier and I have been working with the Minister and her colleague in another place—Kevin Foster, the Minister with responsibility for this area—and we are pleased to be able to say that we seem to have found a way through this situation. This was outlined in a letter sent to Edward Timpson and me this morning. We look forward to the Minister replying in as much detail as possible when winding up.
The Government are proposing to deal with these cases through using Clause 7 in the Bill, putting in place detailed guidance—I quote from the letter—to
“help caseworkers assess applications fairly and consistently and to provide applicants with guidance when applications are likely to be granted.”
The letter continues:
“We are still in the process of developing guidance but, given that you would understandably want assurances on this, I will place a copy of this letter in the Library of the House confirming this intention.”
I am most grateful to the Minister and his Home Office colleagues for their co-operation and at least their willingness to listen. However, I have some questions arising from the letter, to which I would be grateful for answers, either at the Dispatch Box or, if that is not possible, in writing as soon as possible hereafter.
First, in Clause 7, would adopted children—the examples in subsection (2) do not include adoption—come under
“(a) historical legislative unfairness” or
(b) an act or omission of a public authority, or
(c) exceptional circumstances”?
Would the Government consider putting adopted children over 18 in primary legislation as an exceptional circumstance? This would be more secure than guidance, which could be changed without parliamentary scrutiny.
The letter mentions any delays that were beyond the parent/child’s control. If this means delay of the adoption, it seems to suggest that there is an obligation to adopt before the 18th birthday. This is not in line with current adoption law. The letter says that new guidance will be
“subject to there not being any adverse factors”.
While I understand that this is meant to cover situations where, for example, the individual might have a history of offending, what about a real-life example where the child being adopted has no immigration status? This is in no way, shape or form the child’s fault. Would this be held against them as an adverse factor? Surely not, so clarification on that would be appreciated.
I expect that I am primarily going to leave this debate open to those noble Lords discussing Amendment 21. I hope that the Minister will be able to give as full and comprehensive an answer as possible when he winds up. We shall listen to, and subsequently read, what he says with great care. I beg to move.

Baroness Hamwee: My Lords, I do not want to take the time of the House other than to say, with thanks for the letter, that I hope the Minister will accept that discretionary registration is qualitatively different from automatic citizenship, which is what we have been seeking, and understand my concern that the letter uses terms such as addressing
“exceptional cases in a flexible and proportionate way”.
This is vaguer than one would wish to see and a situation which I am sure is nobody’s fault but one of those unintended consequences of legislation not aligning.

Lord Paddick: My Lords, I am glad that the noble Lord, Lord Russell of Liverpool, has reached agreement with the Government. I wish I could say the same.
I will speak to Amendment 21 to Clause 10, which requires the Secretary of State to be satisfied that a child aged between five and 17 cannot reasonably acquire another nationality in order to be registered under the stateless child provisions. The Government allege that parents were deliberately not registering the birth of their children and acquiring citizenship of the parents’ home country to wrongly claim British citizenship, by falsely claiming their children were stateless. We believe this clause should be taken out of the Bill.
In Committee the Minister, the noble Baroness, Lady Williams, provided, at column 548, figures of five cases of this route being used in 2010, which peaked at 1,775 cases in 2018. The Minister concluded “I rest my case”, but this raised further questions: for example, were those 1,775 cases in 2018 the number of stateless children born in the UK who were granted British citizenship in total, legitimately or otherwise, or the number where parents had deliberately chosen not to register their child’s birth to take advantage of the system? The Minister assumed it was the latter but said that she would write, and she did so on Friday.
In Committee, I specifically asked the noble Baroness whether the 1,700 odd cases in 2017 that she referred to were the total number of stateless children granted UK citizenship, or the number of cases of deliberate abuse of the system that Clause 10 purports to tackle. The Minister replied:
“I assume … the latter, but I will write to the noble Lord with the details of the figures I have here”.—[Official Report, 27/1/22; col. 550.]
However, when the Minister wrote, the figures in the letter do not equate to those she gave from the Dispatch Box. Neither is there an answer to the question: of those cases, how many were a deliberate—or even a suspected—case of abuse of the system?
The letter goes on to talk about the sampling of over 200 stateless child applications received between 2015-2021, which on my calculations is about 1% of the applications received. It goes on to say that, in 96% of the sample, the parents were Indian or Sri Lankan and then:
“90% of Indian and Sri Lankan parents had been able to take steps to contact the High Commission to obtain a letter to show their child was in fact not a citizen of that country”
and, in brackets:
“(We do not have data on how many actually attempted to register the birth)”.
In summary, we have numbers in the letter that appear to be at odds with what the Minister said at the Dispatch Box, we have a sample of only 1% of all applications and we do not know how that sample was selected. In the sample, in 90% of cases the relevant high commission confirmed the child was stateless and the Government have no data to show whether parents attempted to register the birth at the time. Despite this, the letter concludes:
“This demonstrates a clear and conscious decision by the parents not to acquire a nationality for their child for at least 5 years”.
That conclusion cannot possibly, in good faith, be drawn from the facts, whichever sets of facts presented by the Government that the House chooses to believe—either the facts the Minister gave from the Dispatch Box or the alternative facts contained in the all-Peers letter.
If the Government cannot now determine how many cases are genuine and how many are the result of attempting to inappropriately acquire British citizenship, on what basis will the Secretary of State exercise her powers under Clause 10 to decide whether the child in question is able to acquire another nationality? Specifically, if, as in 90% of cases in the sample, the relevant high commission confirms the child is stateless, on what basis will the Home Secretary decide not to believe the high commission, decide that the child could acquire the relevant nationality and deny the child British citizenship? What happens to the child denied nationality by the relevant high commission and by the Secretary of State?
If, as the Government suggest, this route is being used inappropriately by parents to acquire British citizenship for themselves, the Government should bring forward legislation to prevent parents acquiring British citizenship through their children by this route, rather than making innocent children, born in the UK, stateless. I was hoping the Minister would write in good time, with a clear and unambiguous answer to the questions I put to her in Committee on 27 January. She did not and she has not.
I am reluctantly left with two options: either the Minister addresses the apparent discrepancies and presents the House with a clear case for Clause 10 now or he agrees to take this away and address our concerns at Third Reading—otherwise I will be forced to conclude  that the case is not made for Clause 10 and will divide the House. We cannot leave UK-born children stateless at the whim of the Home Secretary. Clause 10 should be taken out of the Bill.

Lord Rosser: My Lords, I will not say anything on the amendment addressed by the noble Lord, Lord Russell of Liverpool, in view of what he has indicated about the progress that has been made between Committee and Report, although of course we will listen very closely to what the Minister has to say and indeed read what is in the Minister’s letter, which I think is what the noble Lord, Lord Russell of Liverpool, referred to.
As has been said, Clause 10 is intended to disentitle stateless children in the UK from their statutory right to British citizenship. Under our international obligations we have safeguards that mean that a child who was born in the UK and has always been stateless can acquire British citizenship after five years of residing here. Through Clause 10 the Government propose to restrict and amend that obligation. Clause 10 requires the Secretary of State to be satisfied a child was unable to acquire another nationality before being permitted to register as a British citizen. That, of course, creates an additional—and one would probably feel unjustified—hurdle to stateless children’s registration as British citizens which could be difficult for a child or those acting on their behalf to prove.
There is also the issue that the uncertainty created by Clause 10 could be highly damaging to a child’s personal development and their feelings of security and belonging, due to this exclusion and potential alienation being inflicted in their formative years. Indeed, the question was asked in Committee: how can this be in the best interests of the child?
The noble Lord, Lord Paddick, made reference to the figures which were given by the Government in their response. He also referred to the question which was asked as to whether the figure of 1,175 was the number of stateless children born in the UK who were granted British citizenship, or whether it was the number of cases where parents deliberately chose not to register their child’s birth in order to take advantage of the system. The noble Lord, Lord Paddick, referred to the letter that was received on behalf of the Government, and to the apparent discrepancies between what was said in Committee and the figures which appear in the letter.
I wait with interest to hear the response of the Government, because we, too, asked the question about what the case for Clause 10 was. I think I am right in saying—I recall it being said—that the Government felt that the figures that they gave at Committee were a fairly conclusive argument in favour of abuse of the system, and therefore that this was the case for Clause 10. On the basis of the letter which has been received, and the comments which have been made by the noble Lord, Lord Paddick, there is some doubt as to whether the case has been made.
The noble Lord has asked a number of questions and asked for a number of assurances. The answers he receives will clearly influence the decision he then makes in respect of Clause 10 standing part, and will influence what we, as the Official Opposition, do if the matter is put to a vote.

Lord Sharpe of Epsom: I thank noble Lords who have taken part in this debate.
I turn first to Amendment 2. As has been acknowledged, there are differences in adoption law in various parts of the UK. This is why we do not think that amending Section 1(5) of the British Nationality Act 1981 would be the answer. The Adoption and Children Act 2002 applies only to England and Wales, whereas the territorial reach of the British Nationality Act 1981 includes the whole of the UK. This means that this amendment could have different results in a person’s ability to acquire citizenship, according to where they were adopted. For example, Scotland permits adoptions for those over 18, but differs from England and Wales as there is no upper age limit. Northern Ireland does not currently permit adoptions to happen after the age of 18. Therefore, the effect of this amendment would be to create differences across the UK in who can acquire British citizenship. This should not and could not be right.
Within nationality legislation, automatic acquisition of citizenship is generally reserved for minors. Granting automatic citizenship to adults could result in unintended consequences, possibly affecting another nationality which they hold. Where other countries do not allow their nationals to hold dual nationality, there are often exemptions for children which do not apply for adults. We normally offer adults a registration route so that the person can make a conscious choice about becoming British and take into account any potential implications of doing so.
While we do not want to amend Section 1(5) as proposed, we could use Clause 7 of the Nationality and Borders Bill in these cases. Clause 7 creates a route to British citizenship for those who missed out on acquiring it because of historical legislative unfairness, an act or omission of a public body, or exemptional circumstances relating to that individual. The noble Lord, Lord Russell, has noted this, and I will come to his specific questions in a moment. Registration would allow a person to acquire citizenship without causing unintended consequences as a result of the different legislation in devolved regimes and the overarching nationality law framework.
We will set out in guidance how we intend to use the adult discretionary registration provision created by Clause 7. The discretion must be considered on a case-by-case basis, but we can give examples of where it would normally be used. We think it would normally be reasonable to grant citizenship to an applicant where, for example, an application for adoption is made before a child’s 18th birthday but the adoption order is made afterwards for reasons beyond the control of the parent or child, or where the adoptive parent is a British citizen and the child would have become a British citizen under Section 1(5) of the British Nationality Act 1981, if they had been 18 at the time when the adoption order is made.
This is, of course, subject to there not being any adverse factors, which might include a history of offending or concerns about the genuineness of the relationship with the adoptive parent. But we think registration in  such cases will normally be appropriate given that these young people would have become British but for their exceptional circumstances.
The noble Lord, Lord Russell, asked which of the three limbs inserted by Clause 7 this would fit into. Obviously, while each case would need to be considered individually, we anticipate that most applicable cases would fall under C—the exceptional circumstances limb. However, there may be scenarios where, for example, the second limb—B—is relevant, if the child was under the care of a local authority. In answer to the very specific question about whether immigration status would be an adverse factor: it will not adversely affect the child. My noble friend Lady Williams has placed a letter in the Library confirming this intention and, therefore, I invite the noble Lord to withdraw his amendment.
I turn to Amendment 21. Clause 10 amends the existing provision for registering a child as a British citizen or as a British Overseas Territories citizen, where the child was born in the UK or a territory and has been stateless since birth. As was explained in Committee, Clause 10 is being introduced in response to a growing trend of parents choosing not to register their child’s birth and so acquire their own nationality for their child. There are a small number of countries where a child acquires citizenship only if the parent registers the birth at the high commission in the UK, rather than it being acquired automatically by descent.
Previously in these debates, the noble Lord, Lord Dubs, has talked about the children of refugees, and we understand that while many children of refugees automatically acquire their parent’s nationality at birth, they can be prevented from being able to apply for a passport to the authorities of their country of origin. However, such children are not stateless because they already have a nationality, so would not qualify under the stateless child provisions, as they do not now. They will therefore not be affected by this change.
Most parents applying for their children under this route are not refugees. Home Office sampling, which is being referred to, reflects trends identified by caseworkers. Of over 200 cases sampled of children applying on this route, 96% of applicants had parents with nationalities that require birth registration, and 90% of those parents had contacted the high commission to obtain a letter to show that their child was, in fact, not a citizen, so fear of approaching their authorities was not an issue. Just to anticipate a possible question, I am afraid I do not know how the sampling was arrived at—or the sample. Many of the sampled cases did show parents with poor immigration histories who went on to gain leave to remain as a result of the child being registered. Only 16% of parents had permission to be in the UK at the time of the child’s birth. In 67% of the cases, the parents had gone on to gain leave to remain in the UK as a result of the child’s registration.
In the other place, the Minister gave the example of Child X, which I think is worth retelling.
“At the time of X’s birth, both parents were in the UK without lawful leave. Steps were taken to remove X’s parents, who absconded at one point. However, an application was made to register X as a British citizen, under the stateless minor provision, a few days after their fifth birthday. While they had not approached the Indian high commission to register X’s birth, the parents provided  letters … from the Indian authorities stating that there was no record of the birth having been registered, so they clearly had no fear of approaching the Indian authorities.
“X was registered as a British citizen … The parents then made an application to remain in the UK on the basis of family life, which was granted because it would have been harsh for the British child to leave the UK.”—[Official Report, Commons, Nationality and Borders Bill Committee, 19/10/21; col. 205.]
Noble Lords have also raised concerns about children being kept stateless as they grow into adults, and that is not an accurate reflection of this provision. Where a child is born in the UK, they will have an entitlement to registration if their parents become settled, or they live here until the age of 10. The Home Secretary also has discretion to register any minor, providing they are of good character and are aged over 10, under Section 3(1) of the British Nationality Act 1981, and guidance sets out when that discretion will normally be used.
The noble Lord, Lord Paddick, raised the best interests of stateless children born in the UK. Having a nationality is not only about identity and belonging; it allows many children to acquire a passport or identity document and therefore facilitates travel overseas, such as to see family. Having the same nationality as their parents would surely benefit a child—to promote a sense of belonging and identity and allow them to obtain that documentation, and for the family to travel together as a family unit.
Where a child does not have citizenship from birth and is technically stateless, we recognise that it would be of benefit to a child to gain a nationality. However, whether that needs to be British nationality, rather than that of the parent, needs to be balanced against the wider need to maintain an effective immigration and nationality system. Encouraging parents to take steps to acquire their own nationality for their child will not preclude the child from applying for British citizenship under another route at a later date if they meet the relevant criteria.
The noble Lord, Lord Paddick, queried some of the stats given in the letter and from the Dispatch Box. I can clarify that those given from the Dispatch Box were the overall stats, so the total number of cases in 2018 was 1,775. It has continued to grow at a similar rate on an annual basis.
I reiterate that citizenship is not the only option. There are also provisions in the Immigration Rules for a stateless person to apply for permission to stay in the UK, for which they do not have to wait five years. Equally, their parents are able to apply for immigration leave if they believe they have a valid basis of stay here.
I hope your Lordships will agree that, while it is not a child’s fault that their parents have not registered their birth, it is not fair that in choosing not to acquire a nationality for their child they leave them stateless for five years, without the ability to travel urgently if needed and without the benefits and protections that follow from having a nationality. It is equally not fair to other children who follow the normal routes to British nationality.
Genuinely stateless children will still be able to benefit from this provision. However, where it is possible for parents to acquire their own citizenship for their child through a straightforward administrative procedure, with no risk or significant difficulty, we would expect  them to try to do so before relying on the stateless provisions for British nationality. Given the disadvantages of statelessness that noble Lords have referred to, we would expect a child’s parents to take steps to secure a nationality for them.
Children who cannot qualify under the stateless provision will be able to apply for citizenship once their parent becomes settled, or otherwise if they reach the age of 10. They will be in the same position as other children born in the UK to non-settled parents. I therefore invite noble Lords not to press their amendments.

Lord Russell of Liverpool: My Lords, I thank the Minister for his response. I will not deal directly with Amendment 21, whose time will come in due course, but will respond on Amendment 2.
I understand that, given the current Government’s slightly prickly relationship with the Government north of Hadrian’s Wall, issues to do with the extent of UK legislative authority, when it comes to possibly clashing with Edinburgh’s idea of what its own jurisdiction should be, are a tricky area. I understand why they do not wish to tread there too much. It is a pity, though, because we are talking about the interests of a small group of children rather than the niceties of bouts between the devolved Administrations and Westminster. I take the point.
I thank the Minister for confirming that Clause 7 will be used and guidance produced. In addition, I understand that Edward Timpson found out that apparently—it was a surprise as much to the Home Office as to anybody else—in its office in Liverpool there is a specialist adoption unit whose remit is to look specifically at adoption issues. Kevin Foster said that the unit will be involved under this guidance and that any of the types of cases we are talking about that are flagged up will be brought to the attention of this adoption unit, which I hope will have enough expertise, experience and specialism to be able to really understand the situation and to avoid any mistakes of the kind we have evidenced in the past happening in future. When the guidance is forthcoming, I would be grateful if that could be made clear.
I am also grateful for the confirmation that a child’s immigration status would not be considered an adverse factor when it comes to considering their case. I thank Edward Timpson very much for all the work he has done and the noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, among others, for their support.
I do not know how quickly the draft guidance will be available—does the Minister think it might be available before Third Reading? Clearly, it would be very helpful if it were, and rather unhelpful if not, so could the Minister come back to me as quickly as possible with confirmation on when it will be ready? Will he and the noble Baroness commit to a meeting with those of us most directly concerned, including Edward Timpson, to review this and perhaps help guide the draft guidance in the right direction? That would be much appreciated. If we are unable to resolve this situation satisfactorily before Third Reading, we shall be back, but in the meantime, I beg leave to withdraw the amendment.
Amendment 2 withdrawn.

  
Clause 8: Requirements for naturalisation etc

Amendment 3

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
3: Clause 8, page 11, line 19, at end insert—“(1A) Schedule 1 also amends the British Nationality Act 1981 to allow the Secretary of State to treat a person who has indefinite leave to enter or remain as meeting certain residence requirements in relation to an application for citizenship under those sections.”Member’s explanatory statementThis amendment is consequential on the amendments to Schedule 1 in the name of Baroness Williams of Trafford.

Baroness Williams of Trafford: My Lords, I will aim to speak to all 11 amendments in my name, given that they touch on the same issue of requirements for citizenship applications. In doing so, I particularly thank the noble Baroness, Lady Ludford, both for raising this issue in previous debates and her willingness to meet me, along with the noble Lord, Lord Paddick, to explain more fully her concerns. The noble Baroness has retabled her previous amendment on this subject, and I will set out how measures that we are proposing will, I hope, address her concerns.
As noble Lords will know, the British Nationality Act 1981 set out the requirements for persons wishing to become British citizens based on a period of residence in the UK, be that through naturalisation under Section 6(1) or Section 6(2), or registration under Section 4(2). All three of those application routes have a number of residential requirements designed to demonstrate sufficient ties to this country. One is commonly referred to as “lawful residence”—essentially requiring that the applicant was not in breach of the immigration laws during the requisite residential period prior to the application.
For the majority of applicants this requirement causes no issues. However, as highlighted previously by the noble Baroness, it can lead to frustration for some people. While not restricted solely to those who hold indefinite leave to remain—also known as settled status—under the EU settlement scheme, this group serves well to highlight the problem. In particular, those individuals who had previously been resident here as students or self-sufficient persons were required to hold comprehensive sickness insurance under the EEA regulations. That they had not done so did not preclude their being granted indefinite leave to remain under the EU settlement scheme.
Many of that group understandably wish to progress to become British citizens. However, because they did not hold comprehensive sickness insurance, they technically were in breach of the immigration laws during their previous residence and fall to be refused in any application to become a British citizen. While the British Nationality Act allows for discretion around the lawful residence assessment, this can be applied only in the special circumstances of a particular case. Inevitably, that creates uncertainty for the applicant and may necessitate additional evidence to be supplied to justify the use of discretion.
The main thrust of these amendments is to resolve that impasse. Although not removing the lawful residence requirement itself, we aim to provide the Secretary of State with a much broader power to not even inquire into lawful residence for those who hold indefinite leave to remain. This is based on the simple fact that, for the vast majority of such individuals, any concerns about their immigration history will have been considered and addressed prior to any grant of indefinite leave. In other words, the immigration system, and reforms made since 1981, already demonstrate fulfilment of that requirement.
The amendments do not create an obligation to follow such an approach, but it is expected that it will be in only an exceptional case that we would not want to do so. An example of that might be where adverse information comes to light after indefinite leave has been granted and serves to cast doubt on the wisdom of that decision, but I stress that that would be an exception. The vast majority of people, to whom this does not apply—certainly those whom the noble Baroness has championed so ably—will be able to benefit from these changes.
The amendments will provide the certainty that people ask for, end any potential confusion over differing requirements, reduce the evidence required to be supplied with an application, end the need to repeat inquiries already made in earlier applications, and aid the processing of cases fairly and sensibly. Additionally, the approach will apply to all applicants, not just those with EU settlement scheme indefinite leave, and demonstrates our commitment to creating a modern and simple nationality system to reflect our customer base. The change will bring such people into the warm embrace of citizenship.
I reassure noble Lords that these amendments operate only in the area of lawful residence and, by definition, an individual’s personal immigration history. More serious matters, such as criminality, will not be affected and will still be assessed. Equally, requirements around having been here without excess absences will also need to be met. Should the amendments be adopted, we will, of course, update both the guidance and the application forms to ensure that the benefits can be understood and delivered. This will include references to personal immigration history within the good character guidance.
In addition to changes to how British citizenship may be considered, the amendments also make parallel changes to how naturalisation applications for British Overseas Territories citizenship under Section 18(1) and (2) of the British Nationality Act may be assessed. Those familiar with the Act will be aware that the requirements largely mirror those for naturalisation as a British citizen, with minor differences to reflect the territories within which residence may occur.
I draw noble Lords’ attention to the fact that we do not intend to commence the British Overseas Territories changes at the same pace as those for British citizenship. This is due to the late introduction of the amendments and a lack of opportunity to discuss them in more depth with our overseas territories, and is partly a recognition of the workload that the overseas territories  might already face with the changes we have proposed to address historical discrimination matters. But if the early clauses of this Bill have shown us anything it is that we should take the opportunity to legislate when we can and not create another disparity just as we are removing others. We would rather have the powers and not need them immediately than not have them at all. At a slower pace, and with the benefit of being able to see how the amendment has worked for British citizenship, we can look at commencement for those overseas territories that believe it would be of benefit.
On the noble Baroness’s Amendment 23, consistent with the citizens’ rights agreements and the relevant EU case law, a so-called Lounes dual EEA/British national can currently sponsor relevant family members under the EU settlement scheme where that dual national was living in the UK in accordance with free movement law—including any requirement for CSI—before they also acquired British citizenship. However, as I was pleased to confirm to the noble Baroness in Committee, the Government have decided that, as a matter of fairness, they will amend the Immigration Rules for the EU settlement scheme and the EUSS family permit as soon as possible to disapply the requirement for a Lounes dual national to have held CSI in order to sponsor applications by relevant family members. This will mean that such family members will, in practice, be treated in the same way as an EEA national or their family member in applying to the EU settlement scheme or for an EUSS family permit. Their eligibility will not be affected by any past lack of CSI on the part of their sponsor.
I have explained to the noble Baroness that we do not want to treat EEA nationals differently from other nationals who are required to meet the same requirements for naturalisation in terms of lawful residence. The government amendment we have tabled on lawful residence will benefit EEA nationals and their family members, as well as others who have acquired indefinite leave to remain in the UK, as previous residence will not be reassessed. For the reasons I have set out, I imagine the noble Baroness will be pleased and happy not to press her amendment.

Baroness Ludford: My Lords, I very much thank the Minister, who has taken a very welcome personal interest in this matter, which is very encouraging. The government amendments are interesting and represent some progress, but they are unspecific for EEA citizens, and there is still that discretion, not certainty, that the Secretary of State “may” but not “must” do this.
As I said in Committee, I was grateful for the concession, announced by the Minister and which she has just talked about, to the effect that the Government would
“amend the Immigration Rules … to disapply any requirement for a Lounes dual national”—
this area is littered with technical terminology—
“to have held CSI in order to sponsor applications by relevant family members”
for settlement. I would be very grateful, as we asked in Committee, to know whether there is any further knowledge of what progress there is on that change to the Immigration Rules.
So far, so good—but on the other two arms of my amendment, on registration of children as British citizens and naturalisation as British for an EEA settled person, both without looking at past CSI history, as my amendment asked for, the Minister said in Committee that
“it would not be right to single out EEA nationals”,
and she has repeated that. We are slightly in the same territory as we were on the Chagos amendments, whereby the Government say that they cannot do something specifically for this group. The Minister also said in Committee that
“it would not be right to treat certain nationalities differently”—[Official Report, 1/2/22; col. 794-95]
and she is maintaining this approach.
However, EEA nationals are being treated differently. They have resided previously in this country, often for a long time; a large chunk of an international treaty, the withdrawal agreement, is devoted to them and to their counterparts, British citizens in the EU, and legislation specifically covering them; and there are various arrangements for monitoring and supervising how they are treated. So they are a special case. I would just mention that some children who should have been born British were not, and now have to be registered at a cost of more than £1,000 because of the specifics of the situation of EEA nationals.
After the meeting of the UK-EU joint committee last week—the committee on the withdrawal agreement—Vice-President Šefčovič recalled that
“it was a commitment from both of us that we will do our utmost for the UK nationals in the EU and the EU citizens staying in the UK.”
An EU official was reported as saying that the Commission would consider whether to launch consultations on citizens’ rights, and could ultimately trigger an arbitration process. I am not saying that those remarks were targeted at this specific problem, but that reminds us that there is an oversight mechanism for the fate of EEA citizens.
The CSI issue affects only EEA citizens, nobody else, so removing it entirely from being a virus—I called it “snakes and ladders”—in our immigration regime, would simply bring EEA citizens into line with all other migrants, who do not have a CSI problem. When Prime Minister, Theresa May said:
“The requirement for comprehensive sickness insurance is an EU requirement, and as long as we are members of the EU, it will continue to be there. Once we leave, we can indeed remove it”.—[Official Report, Commons, 26/6/2017; col. 315.]
It is true that the Government removed it for applicants for settled status but, as I hope I have explained through the passage of this Bill, the problem is that it pops up later. You do not get rid of it; that is why I call it a virus. You do not get rid of it—it sort of comes back.
What is not to like about removing red tape? I suggest that while the new government amendments represent some progress—again, I thank the Minister—they still rest on discretion and do not treat EEA citizens on the fair, legally secure basis that I believe they deserve under the withdrawal agreement. I hope that  the Government can do more and ward off any possible action from the European Commission and enforce a slightly more secure basis.
If I cannot get what I really want—acceptance of my amendment—I ask the Minister to confirm at least that, when implemented, the guidance will be updated to always state that the Secretary of State will always exercise her discretion in favour of applicants by not inquiring as to whether they had CSI and by treating self-sufficient persons, students and their family members as not having breached immigration laws. That should be in guidance as a firm commitment. Otherwise, I would like to hear the Minister further.

Lord Coaker: My Lords, we support much of what the noble Baroness, Lady Ludford, has just said and some of the questions she has put forward. No doubt, the Minister will respond to those questions. It has to be said that the Minister has come forward with some amendments that do improve the situation.
Can I just emphasise the important points the Minister made and clarify, in the light of the questions from the noble Baroness, Lady Ludford, that she said it would apply to all residents, not just EU residents? That is an important point that the noble Baroness, Lady Ludford, made, and the House needs further clarification on what “all”—not to be pedantic—actually means in these circumstances for clarity of legislation.
Having welcomed the step forward the Minister has clearly made, I think that what “exceptional” means is also important—so that the Secretary of State will not use the power to prevent somebody without CSI gaining citizenship other than in exceptional circumstances. The noble Baroness, Lady Ludford, again, is right to ask for greater clarity about how “exceptional circumstances” will be defined and whether there will actually be guidance that any future Home Secretary will have to take into account in determining whether leave to remain should be changed to a full citizenship status in the particular circumstances with which this group of amendments is dealing.
I thank the Minister for coming forward with those amendments and trying to meet many of the concerns that were raised in Committee and before. I look forward, with the noble Baroness, Lady Ludford, I am sure, to the answers to the important questions that have been raised, notwithstanding the amendments before us this afternoon.

Baroness Williams of Trafford: I thank both noble Lords for the points they have just made. I did refer to guidance in the points I was making in introducing. Yes, the guidance will make things clear.
In terms of “all”, “all” means all nationalities; the provisions will apply to all nationalities. I know the noble Baroness says this is a particular EU problem, but we are trying to make provisions that apply to all countries.
In terms of that point about “may” and “must”, “may” rather than “must” reserves the “may” for the most exceptional cases where it would not be appropriate to take that more generous approach. The provisions will be applicable to the vast majority of applicants,  apart from those “may” applicants where a generous approach would not be appropriate—for example, criminality. I hope that explains it to the noble Baroness.

Baroness Ludford: I do thank the Minister for that reply. I am not absolutely certain. It may just be that I did not follow the detail, but I am not sure I quite heard that the guidance, apart from in the exceptional case of criminality, will say that the Secretary of State will always exercise her discretion in favour of EEA applicants by not inquiring about the CSI record of the people that it affected.
I have some understanding for what she said about people with a criminal record but, that apart, I should like to hear—perhaps I will not get this today—that the guidance will say that, in normal cases, for EEA nationals, there will always be a good outcome in disregarding a CSI gap. I am not sure that I have quite heard that. I do not know whether the Minister wants to clarify that now, or whether I should just accept—

Baroness Williams of Trafford: I cannot make an absolutist comment, but I was trying to explain to the noble Baroness that anyone in the normal run of things—other than, for example, serious criminality—would be caught by the government amendments.

Baroness Ludford: I thank the Minister for that further clarification. I think I have got as far as I am going to get—

Noble Lords: Order!

Baroness Finlay of Llandaff: My Lords, I think I should put the Question.
Amendment 3 agreed.

Amendment 4

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
4: Clause 8, page 11, line 22, at end insert—“(b) in section 41(4), for “that section” substitute “section 41 of the British Nationality Act 1981 (regulations)”.”Member’s explanatory statementThis is a minor clarificatory amendment which is consequential on the amendments to the 2009 Act made by Clause 8(2).
Amendment 4 agreed.

  
Schedule 1: Waiver of requirement of presence in UK etc

Amendments 5 to 13

Baroness Williams of Trafford: Moved by Baroness Williams of Trafford
5: Schedule 1, page 86, line 6, leave out from beginning to “in” in line 7 and insert—“(1) Section 4 (acquisition by registration: British overseas territories citizens etc) is amended as follows.  (2) ”Member’s explanatory statementThis amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 16.
6: Schedule 1, page 86, line 16, at end insert—“(3) After subsection (4) insert—“(4A) Subsection (4B) applies where, on an application for registration as a British citizen made by a person to whom this section applies, the applicant has indefinite leave to enter or remain in the United Kingdom.(4B) The Secretary of State may for the purposes of subsection (2) treat the applicant as fulfilling the requirement specified in subsection (2)(d), without enquiring into whether or not the applicant was in the United Kingdom in breach of the immigration laws in the period there mentioned.(4C) The reference in subsection (4A) to having indefinite leave to enter or remain is to be construed in accordance with the Immigration Act 1971.””Member’s explanatory statementThis amendment would provide that, for applications for citizenship under section 4 of BNA 1981 where the applicant has indefinite leave, the Secretary of State may without further enquiry treat the applicant as fulfilling the requirement not to have been in the United Kingdom in breach of the immigration laws.
7: Schedule 1, page 86, line 27, at end insert—“(ba) after that sub-paragraph insert—“(1A) Sub-paragraph (1B) applies where the applicant has indefinite leave to enter or remain in the United Kingdom.(1B) The Secretary of State may for the purposes of paragraph 1 treat the applicant as fulfilling the requirement specified in paragraph 1(2)(d), without enquiring into whether or not the applicant was in the United Kingdom in breach of the immigration laws in the period there mentioned.(1C) The reference in sub-paragraph (1A) to having indefinite leave to enter or remain is to be construed in accordance with the Immigration Act 1971.”;”Member’s explanatory statementThis amendment would provide that, for applications for citizenship under section 6 of BNA 1981 where the applicant has indefinite leave, the Secretary of State may without further enquiry treat the applicant as fulfilling the requirement not to have been in the United Kingdom in breach of the immigration laws.
8: Schedule 1, page 86, line 28, at end insert—“(2A) In paragraph 4, in paragraph (a)—(a) for “the reference” substitute “the references”;(b) for “a reference” substitute “references”.”Member’s explanatory statementThis amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 27.
9: Schedule 1, page 86, line 30, at end insert—“(za) the existing text becomes sub-paragraph (1);”Member’s explanatory statementThis amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 38.
10: Schedule 1, page 86, line 31, after “(a)” insert “of that sub-paragraph”Member’s explanatory statementThis amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 38.
11: Schedule 1, page 86, line 36, after “(a)” insert “of that sub-paragraph”   Member’s explanatory statementThis amendment is consequential on the amendment in the name of Baroness Williams of Trafford at page 86, line 38.
12: Schedule 1, page 86, line 38, at end insert—“(c) after that sub-paragraph insert—“(2) Sub-paragraph (3) applies where the applicant has indefinite leave to enter or remain in the relevant territory.(3) The Secretary of State may for the purposes of paragraph 5 treat the applicant as fulfilling the requirement specified in paragraph 5(2)(d), without enquiring into whether or not the applicant was in the relevant territory in breach of the immigration laws in the period there mentioned.(4) The reference in sub-paragraph (2) to having indefinite leave to enter or remain is to be construed as a reference to any status formally granted under the immigration laws in force in the relevant territory which is broadly equivalent to the status of having indefinite leave to enter or remain under the Immigration Act 1971.””Member’s explanatory statementThis amendment would provide that, for applications for citizenship under section 18 of BNA 1981 where the applicant has indefinite leave to enter or remain in the relevant territory, the Secretary of State may without further enquiry treat the applicant as fulfilling the requirement not to have been in the relevant territory in breach of the immigration laws.
13: Schedule 1, page 86, line 38, at end insert—“(4) In paragraph 8, in paragraph (a)—(a) for “the reference” substitute “the references”;(b) for “a reference” substitute “references”.”Member’s explanatory statementThis amendment is consequential on the other amendment in the name of Baroness Williams of Trafford at page 86, line 38.
Amendments 5 to 13 agreed.

Amendment 14

Lord Anderson of Ipswich: Moved by Lord Anderson of Ipswich
14: After Schedule 1, insert the following new Schedule—“SCHEDULE 1A DEPRIVATION OF CITIZENSHIP WITHOUT NOTICE: JUDICIAL OVERSIGHTThis is the Schedule to be inserted after Schedule 4 to the British Nationality Act 1981—“SCHEDULE 4A Section 40(5E)DEPRIVATION OF CITIZENSHIP WITHOUT NOTICE: JUDICIAL OVERSIGHTDeprivation without notice: application to Special Immigration Appeals Commission1_(1) If the Secretary of State proposes to make a conducive grounds deprivation order without notice, the Secretary of State may apply to the Special Immigration Appeals Commission under this paragraph.(2) If the Secretary of State makes a conducive grounds deprivation order without notice, the Secretary of State must apply to the Special Immigration Appeals Commission under this paragraph within the period of seven days beginning with the day on which the order is made (unless an application has already been made under sub-paragraph (1)).(3) The function of the Commission on an application under this paragraph is to determine whether, in respect of each condition in section 40(5A) on which the Secretary of State relies, the Secretary of State’s view is obviously flawed.  (4) In determining that question, the Commission must apply the principles that would be applicable on an application for judicial review.(5) If the Commission determines that the Secretary of State’s view is obviously flawed in respect of each condition in section 40(5A) on which the Secretary of State relies—(a) if the order in question has not been made, section 40(5) applies in relation to the order (notwithstanding section 40(5A));(b) if the order has been made, the Secretary of State must, within the period of 14 days beginning with the day on which the Commission made the determination—(i) give late notice in respect of the order,(ii) revoke the order, or(iii) make an application under sub-paragraph (6).(6) The Secretary of State may (at any time) make an application to the Special Immigration Appeals Commission for fresh consideration of a decision the Secretary of State has made under section 40(5A) where—(a) in the opinion of the Secretary of State, circumstances have changed materially since the determination mentioned in sub-paragraph (5), or(b) the Secretary of State wishes to provide further evidence to the Commission.Sub-paragraphs (3) to (5) apply to an application under this sub-paragraph.Deprivation of citizenship without notice: review2_(1) Sub-paragraphs (2) to (5) apply if—(a) the Secretary of State makes a conducive grounds deprivation order without notice, and(b) the Special Immigration Appeals Commission has not made the determination mentioned in paragraph 1(5) (Secretary of State’s decision obviously flawed).(2) The Secretary of State must, at least once in every review period, review the circumstances of the person in respect of whom the order was made (so far as known) and decide whether to give late notice in respect of the order.(3) On such a review, the Secretary of State must decide to give late notice to the person unless it appears to the Secretary of State that any of the conditions in section 40(5A) is met (reading any reference in those provisions to notice under section 40(5) as a reference to late notice).(4) If the Secretary of State decides at any point to give late notice in respect of the order—(a) the Secretary of State must give the notice as soon as reasonably practicable, and(b) once the notice is given, sub-paragraph (2) ceases to apply in relation to the person.(5) If on the expiry of the final review period the Secretary of State has not given, or has not decided to give, late notice in respect of the order, the Secretary of State must make an application to the Special Immigration Appeals Commission within the period of seven days beginning with the day after the final day of that review period.(6) Sub-paragraphs (3) to (6) of paragraph 1 (except sub-paragraph (5)(a)) apply for the purposes of an application under sub-paragraph (5) as they apply for the purposes of an application under that paragraph.(7) For the purposes of this paragraph, each of the following is a “review period”—   (a) the period of four months beginning with the day after the day on which the Special Immigration Appeals Commission first determined an application in relation to the order under paragraph 1, and(b) each of the next five successive periods of four months.Interpretation3_(1) In this Schedule, references to making a conducive grounds deprivation order without notice are to making an order under section 40(2) without giving notice under subsection (5) of that section (in reliance on subsection (5A) of that section).(2) In this Schedule, “late notice”, in respect of an order under section 40(5), means written notice to the person in respect of whom the order was made specifying—(a) that the Secretary of State has made the order,(b) the reasons for the order, and(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.””Member’s explanatory statementThis amendment inserts a new Schedule into the British Nationality Act 1981, to make provision for judicial oversight of decisions to deprive a person of their citizenship status without notice on grounds that the deprivation is conducive to the public good.

Lord Anderson of Ipswich: My Lords, the circumstances in which British citizenship may be removed were keenly debated in Committee. This group concerns a narrower issue: whether it should be possible to remove someone’s citizenship without giving them notice of it at the time and, if so, in what circumstances. Clause 9 struck me as so problematic that, in Committee, I tabled a stand part notice; that is echoed today by Amendment 20 in the name of the noble Baroness, Lady D’Souza. In Committee, I asked the Minister to take Clause 9 away and challenged her, if she could make the case for such an extraordinary power, to come back with a version of it that is far more limited in scope and subject to proper safeguards and accountability.
The Minister responded to that challenge as positively and wholeheartedly as I could have hoped. I pay tribute to her, to her fellow Minister, Tom Pursglove, to the Bill team and to those at the Home Office and in agencies with whom I have discussed these issues—and I pay no less tribute to the NGOs and individuals who have impressed on me the dangers of Clause 9. The result, after what I think I can fairly describe as very considerable movement on the part of the Government, is the first six amendments in this group, together with Amendment 85, which concerns commencement. They have been pulled into proper shape by the Office of the Parliamentary Counsel, and I hoped that they could be tabled last Monday as government amendments, with my support, but an extra day was needed to conclude our discussions, so they appear under my name. I am grateful to the noble Lord, Lord Macdonald of River Glaven, and the noble Baroness, Lady McIntosh of Pickering, for adding their support.
These amendments achieve four important things. The first is a far more restricted range of circumstances in which notice can be withheld. The original Clause 9 would have allowed the Secretary of State to withhold notice whenever that appeared to her to be in the  public interest. Amendments 15 and 16 remove the subjective element and provide that notice may be withheld only if the Secretary of State does not have an address for service, or if she reasonably considers it necessary on one of the four exceptional grounds specified in Amendment 16.
Let me illustrate my understanding of how those exceptional grounds could arise in practice. A terrorist may be living in a safe house here, or more likely abroad, without realising that his whereabouts are known to the authorities. To require a notice of citizenship deprivation to be served on him at that address would reveal to him that he is the object of covert surveillance, contrary to the interests of national security: proposed new sub-paragraph (i). The same may be true of a participant in “organised or serious crime”—the phrase being taken from Section 1 of the Serious Crime Act 2015, which defines the remit of the National Crime Agency: proposed new sub-paragraph (ii). If intelligence as to location was supplied by a foreign liaison partner which does not wish its cover to be blown, notification at that address could jeopardise our intelligence relationship with that country: proposed new sub-paragraph (iv). The person in question might be, for example, with a dangerous armed group in a failed state. To require a courier to travel to such places to serve notice, at great personal risk, would be wrong: hence proposed new sub-paragraph (iii).
I do not believe that these grounds will be commonly advanced—it seems that, with a degree of ingenuity, workarounds have been found in the past—but neither, I suggest as a former independent reviewer of terrorism legislation, should they be dismissed as fanciful. It may be relevant that the laws of two of our closest allies are, if anything, more broadly drawn than this amendment. The New Zealand Citizenship Act 1977 allows for notice of deprivation to be dispensed with if it would be for any reason “not practicable” to serve it on the subject. The Australian Act of 2020 allows the Minister to determine that notice should not be given if it could prejudice the security, defence or international relations of Australia or Australian law enforcement operations.
The second feature of these amendments is to introduce powerful safeguards for conducive grounds deprivations that were entirely absent from the original Clause 9. In New Zealand, they have judicial scrutiny of these decisions. In Australia, they have regular ministerial review. Elements of both those safeguards are contained in the new Schedule 4A, which is set out in Amendment 14 and referred to in Amendments 17 and 19.
The judicial safeguard is in paragraph 1 of the schedule. If the Secretary of State wishes to withhold notice, she must apply to a superior court of record—the Special Immigration Appeals Commission—in advance or within seven days. SIAC will examine her reasons and decide, applying judicial review principles, whether her assessment is obviously flawed. That is the same test that is applied to the making of terrorism prevention and investigation orders under the TPIM Act 2011. SIAC will no doubt develop similar rules to deal with it, which might, in an appropriate case, provide for the appointment of a special advocate. If she does not succeed on her first attempt or on a subsequent  application, which must be based on material change of circumstances or further evidence, the Secretary of State must either give notice in the normal way or revoke the deprivation order altogether.
The review safeguard is in paragraph 2 of the schedule. The Secretary of State must consider, three times a year for two years, whether the reasons for non-notification remain valid. If, after the sixth review, she still resists notification, she must make a further application to SIAC, which will, once again, give independent scrutiny to her decision.
The twin requirements of judicial approval and regular review will place a significant burden on the Secretary of State in any case where she wishes to exercise this power. I make no apology for that. Under the Immigration Rules, as they stood between 2018 and 2021, it was easy—far too easy—not to give notice but simply to record it on the file. That path was taken in no fewer than 29 of the 45 conducive grounds deprivations, mostly related to national security activity abroad, that were made in 2019, 2020 and 2021. These amendments not only require non-notification to be a last resort on paper; they make it hard work in practice. They should ensure that, in its own interests, the Home Office will take this exceptional course only when there really is no possible alternative.
The third feature of these amendments relates to appeals. Of course, a subject cannot appeal against a notice of deprivation until he has become aware of it. But Amendment 18 provides that time for appeal will begin to run only once notice has been given. It will not, therefore, be necessary to rely on the discretion of the court to extend time for appeal in cases where deprivation has not been notified at the time.
The fourth and final feature is in the proposed new subsections 5(c) and (d) inserted by Amendment 18. Any person whose citizenship was removed without notice must be informed of that fact, with reasons and information about appeal rights, as soon as they make themselves known to the Home Office, whether within the two-year review period or thereafter; for example, this might be by seeking consular assistance or a fresh passport.
Amendment 18 has another significant and, I would suggest, highly beneficial effect. The point has been well made by other noble Lords that upstanding citizens of this country, notably dual citizens, may be anxious about the removal of their citizenship without their knowledge. Amendment 18 provides such people with a means of reassurance. They have only to contact the Home Office to be told whether this has happened or whether, as will almost always be the case, it has not.
In Committee, the noble Lord, Lord Blunkett, challenged the House to
“find a way forward on Report that takes away the genuine fear from millions of people who believe—erroneously, but they believe it—that Clause 9 as drafted and the implementation of further measures will put them and their families at risk”.—[Official Report, 27/1/2022; col. 518.]
These amendments rise to that challenge. They should ensure that non-notification is confined to those rare cases where it is truly necessary, and they are subject to strong safeguards, including regular review, judicial scrutiny and a right to be informed on request.
I come finally to subsections (5) to (7) to Clause 9, which seek to limit the effect of the D4 case by providing that an unlawful failure to notify a pre-commencement deprivation order should not affect the validity of that order. I will listen carefully to my noble friend Lady D’Souza develop her manuscript amendment to remove those clauses, but in the meantime, to assist our deliberations, I ask the Minister to give two assurances relevant to that amendment. First, will she confirm that anyone subject to a pre-commencement deprivation order will be informed of that fact if they contact the Home Office, by analogy with proposed new subsections (5C) and (5D), as inserted by Amendment 17? They would then be in a position to proceed with any substantive appeal. Secondly, will she confirm, by analogy with Amendment 18, that the Home Office will not suggest that any of these people are out of time for appeal as a consequence of the interval between the decision to remove their citizenship and the giving of notice?
If my amendments are accepted, and those assurances given, I believe that we will have played our part as a revising Chamber and achieved a broadly acceptable balance. Opinions on citizenship removal will, of course, continue to differ, but the aggravating factor of removal without notice will be strictly confined and properly safeguarded for the future, as it was not in the Immigration Rules as they stood prior to the D4 judgment of last year, and as it was not under Clause 9 as it was passed by the Commons. I beg to move my amendment and, if necessary, I will test the opinion of the House.

Baroness McIntosh of Pickering: My Lords, I am very grateful to the Minister for her support in drafting these amendments, and I hope that she will give an assurance that the Government do, indeed, support these amendments. I thank the noble Lord, Lord Anderson of Ipswich, for addressing many of the concerns that I raised in Committee, particularly those expressed to me by the Law Society of Scotland, which was extremely dissatisfied that, in the original Clause 9, the Government had not fully justified the removal of citizenship without notifying the affected person. It asked that this clause be reconsidered, and I am grateful to the noble Lord for doing so.
Equally, in Committee, I raised the concerns expressed to me by the European Network on Statelessness in its briefing. It was very concerned that Clause 9 as drafted would
“have severe impacts on the rule of law and on a person’s fundamental rights”,
and that, as drafted, Clause 9
“disregards many of the UK’s international obligations, including the prohibition of arbitrary deprivation of nationality, the obligation to avoid statelessness, and the right to a fair hearing.”
In its view, the UK Government
“has not provided any justification as to why such a restriction on fundamental rights is needed.”
I pay tribute to the Minister and the noble Lord, Lord Anderson of Ipswich; many of my concerns have been addressed. I support the amendments introduced by the noble Lord, Lord Anderson, and support the reasons that he has given. The restrictive range of circumstances has been greatly reduced in which a citizen’s rights could be taken away. I support the powerful safeguards he set out as to why a citizen  could be deprived of their citizenship, the rights of appeal, the provision that a citizen must be informed that their citizenship is going to be removed and the reassurance that he set out that could be given by condition C at that time. I support the amendments.

Lord Macdonald of River Glaven: My Lords, powers to deprive British citizens of their citizenship have historically been very tightly drawn under UK immigration law for obvious reasons. However, I reminded the Committee that in 2003, 2006, 2014 and 2018, these powers were very considerably expanded, so that now they are exercisable against any British citizen who has dual nationality, where the Secretary of State is satisfied that deprivation is conducive to the public good. The breadth of this power is perhaps best understood by the Supreme Court’s conclusion in the Begum case, that this includes situations where the individual is unaware that they hold dual nationality and even where that individual has little or no connection with their country of second nationality.
I reminded the Committee of the words of the leading immigration law silk, Raza Husain QC, who said:
“This progressive extension over the last two decades has meant that it is no longer necessary to demonstrate that someone is a terrorist or a traitor before stripping them of British citizenship. Individuals may be deprived of citizenship on general public interest grounds of the sort usually invoked to justify deportation, rather than on the basis of their severing the bonds of allegiance that are the hallmark of nationality.”
The drastic nature of this power was well described by the United States chief justice Earl Warren, a Republican, put on the court by President Eisenhower, who said that the loss of nationality amounts to
“the total destruction of the individual’s status in organised society… the expatriate has lost the right to have rights.”
He was channelling Hannah Arendt there.
Deprivation of citizenship is such a drastic and far-reaching power that it must be accompanied by proper procedural safeguards. That much is obvious. This is a power that has been beloved of some of the worst regimes in history. If we are to permit this power to a Secretary of State, it must be accompanied by procedural safeguards. In its original form, Clause 9 went in precisely the opposite direction, removing the most basic safeguard of all—the safeguard of notification —really at the Secretary of State’s whim. That was not good enough and, like my noble friend Lord Anderson, I am grateful to the Government for having listened to the debate in Committee and for having changed course. Again, like him, I am satisfied that serious movement has been made and that some of our most serious concerns about the clause as originally drafted have been responded to appropriately. For that reason, I will be supporting this amendment and am extremely grateful to the noble Lord, Lord Anderson, for moving it.

Baroness D'Souza: My Lords, the amendments tabled by the noble Lord, Lord Anderson, add hugely important safeguards to Clause 9, but subsections (5) to (7), which are set out on page 12 at lines 13 to 19, would remain in place and appear to make lawful what is clearly unlawful. The secret power to deprive citizenship without notice and/or appeal threatens our cherished  British values of fair play and the rule of law. It would also risk unduly affecting ethnic minority communities. Subsections (5) to (7) seek to instruct the courts to treat past unlawful deprivations as if they were lawful, even where the courts have found that these actions failed to comply with statute at the time when they were made.
Parliament, it seems to me, is being asked to condone a disregard for the law by those Ministers who took away British national citizenship when it was illegal to do so. If these provisions remain in the Bill, a series of unlawful deprivation orders made against young women from minority ethnic communities will not be subject to any scrutiny whatever. This cannot be right.
It seems clear from what has been said so far on this clause that the most profound concerns still relate to Clause 9 as a whole and—although the amendment tabled by the noble Lord, Lord Anderson, alters the whole tenor of the Bill and grateful thanks are due to the Minister for enabling this—the concerns remain. These clauses would create a secret power. Clause 9 goes well beyond cases where the Government cannot provide notice. According to the Policy Exchange think tank, at no point in the last century has it been thought that national security called for depriving British citizens of their citizenship without notice. We cannot see the case for this now, at a time when our closest allies, such as the US, are warning that depriving individuals of citizenship is not an effective way to fight terrorism.
The main issue in this group of amendments is whether Clause 9 should remain part of the Bill. My suggestion is that it should be removed to create certainty and clarity. It seems to me that the optimal solution would be to remove this clause altogether, not only because, as it stands, it is contrary to British law and indeed to parts of the UN refugee convention, but because this clause—as well as new subsections (5) to (7) proposed by the amendment in the name of the noble Lord, Lord Anderson—seem to enable further restrictive orders, something that we as a scrutinising Chamber should avoid at all costs. Therefore, while I will of course support the noble Lord’s amendment, I will also seek to move my amendment, which would leave Clause 9 out.

Baroness Bennett of Manor Castle: My Lords, it is a great pleasure to follow the noble Baroness, Lady D’Souza, and I agree with what she said and that, although the amendments moved by the noble Lord, Lord Anderson, have made Clause 9 less bad, it is still a bad clause that should disappear from the Bill. When introducing this group, the noble Lord, Lord Anderson, said that these amendments were all about Clause 9. I would rather say that my Amendment 22, to which I will speak, was provoked by Clause 9. One thing revealed in public debate—and there has been an enormous amount of public debate around Clause 9—is the fact that so many people had not realised that what the Minister described earlier as the “warm embrace of citizenship” can be taken away, and that there is profound discrimination in the way that this can happen.
The noble Baroness, Lady Chakrabarti, talked in Committee talked about two-tier citizenship; I talk about it as two classes of citizenship. I regret that I was  not able to take part in Committee; I thank my noble friend Lady Jones of Moulsecoomb for very ably speaking for me. However, there are about 6 million Britons—I declare an interest as I am among them—who, because of another citizenship or their descent from people who came to Britain and chose to be Britons, have second-class citizenship. It can be taken away by the Government and, as the noble Lord, Lord Macdonald of River Glaven, just outlined very clearly, we have seen a very rapid and considerable escalation of the ways in which that power can be, and has been, applied.
My Amendment 22 makes one exception. If someone attains citizenship by means of fraud or misrepresentation, obviously, the power should remain for that citizenship to be taken away, but if that citizenship has been acquired honestly, my amendment says that it cannot be taken away. I suggest to your Lordships’ House that this is the only way that we can ensure that every British citizen is the same class of citizen and treated in the same way. Given that people who have, or have access to, alternative citizenships come from migrant backgrounds, the discrimination in how this is applied is very obvious. I note from having read the Hansard report of Committee very carefully that the noble Baroness, Lady Mobarik, expressed support for this. I thank the noble Lord, Lord Paddick, for also expressing support in principle for the idea that there should be only one class of citizenship and the Government should not be able to take it away.
I can imagine the response I might hear from the Minister: what about someone who is a security threat? If we have given millions of people British citizenship, we have benefited from the contributions, of all kinds, that they have made to the UK. Should we be able to say, “This person’s a problem so we’re going to get rid of them”, and make them someone else’s problem? If a person is a security threat to the UK, they might well be a security threat to the country that they hold citizenship for and that we send them to. Why should we be able to dump our problems on someone else?
I find myself torn. I aware of the desire in your Lordships’ House to take away some of the worst elements of the Bill, but I also find myself supported by many people in civil society who say that they want to ensure that there is one class of citizenship. I have said to all the relevant authorities that I will reserve the right to call a vote on this, because I find it a matter of principle on which it is very difficult simply to withdraw the amendment. I would really like to hear everyone’s position on this, particularly the Front-Bench speakers—I hope one of the Lords spiritual might contribute—and everyone’s explanation of whether they believe there should be two classes of British citizenship. Having heard that debate, I will make a decision about whether to push Amendment 22 to a vote.

Lord Carlile of Berriew: My Lords—oh, sorry.

Bishop of Chelmsford: Thank you. My Lords, I am grateful for the suggestion that the House might like to hear from the Lords spiritual. I support the amendment in the name of the noble Baroness, Lady D’Souza, which proposes that Clause 9 should not stand part of the Bill. We debated this at some length in Committee. It is somewhat disappointing that the  Government have not taken the opportunity to reconsider more fully. I will not delay the House by repeating the arguments, but I will briefly speak about trust.
The Government seem genuinely confused by the level of opposition that the clause has triggered, but this should not have been surprising because I am afraid that it is symptomatic of a serious breakdown in trust between the Home Office and society groups, particularly minority ethnic groups, as we have heard. The response to the Windrush Lessons Learned Review promised a new culture in the Home Office—one that was more compassionate, that saw faces behind the cases and would rebuild and enhance
“public trust and confidence in the Home Office”.
The Bill as a whole does not do much to create the impression that this new culture has been embedded. Trust is hard to build and very easy to lose. On the issue of deprivation of citizenship and the treatment of minorities, trust is sufficiently low that any new changes to these powers must surely come with a compelling and overwhelming demonstration of a serious and widespread problem that needs to be solved.
I remain unconvinced that the Government have demonstrated that there is a sufficiently major problem that existing powers do not address. I am quite convinced that the impact this clause will have—indeed, already has had in continuing to undermine trust between the Home Office and civil society—is serious enough that the Bill would be greatly improved by Clause 9 being removed in its entirety. Having said that, I have heard the words of the noble Lord, Lord Anderson. He provided a compelling and informed case for his saving amendments. I will listen with interest to the Minister’s response.

Lord Carlile of Berriew: My Lords, I apologise to the right reverend Prelate the Bishop of Chelmsford for my lack of control over my new varifocals, and to your Lordships for entering the debate at this late stage. I have been listening to the debate in the context of my concerns about the majority judgments in the D4 case, which has already been mentioned. I read my noble friend Lord Anderson’s amendments and listened with enormous care to his very clear—indeed, brilliant—opening. I support his amendments. My view is that they go further than is absolutely necessary in terms of proportionality between the duties and rights of citizens and the setting of safeguards to ensure that this equation is well balanced. Overbalancing in favour of protections is a good fault in the circumstances, hence my declared support for my noble friend’s amendments.
I will just say a word in relation to Amendment 22, which I am afraid I find rather befuddling. I am befuddled by the notion that somebody should be able to lose their citizenship for committing an offence of fraud but not for being a terrorist treacherous to and betraying their own country. That is absolutely what that amendment says. It may not have been intended as such, but that is how it reads. I suggest that, far from people with dual nationality being second-class citizens, they are advantaged citizens. We have been talking a good deal about oligarchs in recent days, and I can tell the noble Baroness who tabled Amendment 22  that expensive law firms have been expending large sums of oligarchs’ money on obtaining dual nationality so that those people can have the advantage of being able to hedge their bets in more than one country. I am not a dual national, but if I were a citizen of Ireland or the United States, for example, I would consider it a privilege and an advantage, not some kind of second-class citizenship.
I turn to the principle behind this. I listened with interest to my noble friend Lord Macdonald of River Glaven, who is a distinguished former Director of Public Prosecutions. There seems to be some kind of presumption among some commentators, and possibly one or two Members of your Lordships’ House, that the Home Secretary will deprive everyone of their citizenship if they have gone to Syria and married a terrorist, simply because they have done that. But as my noble friend Lord Macdonald will know, there are many cases in which the Director of Public Prosecutions—he did this with great distinction—makes a decision on public interest grounds as to whether a case should be pursued. In this situation, particularly in the light of the amendments by my noble friend Lord Anderson, the Home Secretary would have exactly that kind of discretion and would not make a decision in every single case. Under the architecture that my noble friend Lord Anderson has set out, if a decision was made and was disproportionate, on judicial review principles it would be subject—as he said very clearly—to come before the Special Immigration Appeals Commission. So this is not simply lumping a large number of people into being deprived of citizenship. We can assume, at least in our country, that we do not operate like Mr Putin and that in fact rational decisions are taken and are tested in a rational way before the courts.
I have three examples of cases in which it is proportionate not to serve notice, even if there is some knowledge of whereabouts. I think I should state them briefly for the record. First, let us take a case relating to new subsection (5A)(c)(i) of Section 40 of the British Nationality Act 1981, on national security grounds. If the Home Office holds sensitive intelligence that details an individual’s whereabouts so that they could cause notice to be served on that person, but the sensitive source of the intelligence means they cannot use it without revealing and risking the life of the sensitive source, and in so doing causing damage to national security, that is a clear example where non-service to file is entirely justified—particularly with my noble friend Lord Anderson’s architecture, as I have called it.
The second example relates to new subsection (5A)(c)(ii), inserted by Clause 9, relating to
“the interests of the relationship between the United Kingdom and another country”.
Let us suppose the Home Office holds sensitive intelligence obtained from a third country, as to an individual’s address or whereabouts such that the Home Office could—if it relied upon this intelligence—cause notice to be served on the person. Such intelligence sometimes comes from countries with which we do not have close intelligence relationships for particular reasons. So, using the address that has been given may not cause damage to our national security, but it might be damaging to the national security interests of the third country and even cause damage to the UK’s relationship with  that country if the Home Office relied upon it. Without that intelligence, the Home Office would not know the individual’s whereabouts in order to effect service. Clearly, that is a situation in which it is reasonable not to serve.
My third example, which relates to new subsection (5A)(c)(iii)—not in the public interest—inserted by Clause 9, is an example where the Home Office holds an address for an individual that, if relied upon, could be used to cause notice to be served on the individual, but there is no functioning postal system where the individual is living. There is, however, the prospect of delivering the notice to the address via a courier. But doing so would expose the courier to risk—either due to prevailing circumstances in the region or due to the threat posed by the individual to be served if the courier encounters them. This is a very real example. I have seen this illustrated in a country—which I will not name in this debate—where civil servants doing other functions would be in a position to deliver such notices. Surely it would not be right for the Home Office to expose the courier to such risk and, indeed, to danger to their life.
So I come back to the balance between rights and duties. Most of the cohort we are discussing absolutely know the risk they take if they go and fight as terrorists, betray this country and put it in danger. Most of those people—not all, and I refer to what I said at the beginning about the Home Secretary’s discretion—will know if they are able to have the nationality of another country. If they do, those are the cases in which the Home Office should, in my view, be allowed to make such orders, and it would be foolish of us to stand in the way of that. Indeed, in making such orders, that is entirely proportionate to a judgment between the duties of the citizen not to betray their country and the rights of the citizen not, in certain circumstances, to have their citizenship removed.
Removing Clause 9 from the Bill leaves the unattractive proposition that, even where an alternative nationality is available, individuals should have a free run to betray this country and be terrorists against this country’s interests. I am against that, and I am absolutely certain that most reasonable people are against that.

Baroness Bennett of Manor Castle: The noble Lord has displayed a very touching faith in the Home Office, which I do not think reflected the view of your Lordships’ House in an earlier debate in terms of how we are approaching Ukrainian refugees. Is he aware of the case of the gentleman known as E3, who was deprived of his British citizenship for many years, was eventually able to appeal that, has never been arrested or charged, and has finally—on 11 February—returned to the UK and is now back with his family after many years of separation.

Lord Carlile of Berriew: I am not aware of the details of that case, but I would say to the noble Baroness that the architecture that the amendments of the noble Lord, Lord Anderson, set out would protect such a person in a much better way than was the case before.

Baroness Warsi: My Lords, I start by congratulating the noble Lord, Lord Anderson of Ipswich, on the detailed measures that he has brought forward. I really appreciate the time that he has given to the discussions and debates that he and I, and other Members of this House, have had over the last few weeks and months. I also pay tribute to my noble friend Lady Williams for her work and her calls, and for the way in which she has dealt with this issue, reaching out to try genuinely and sincerely to find a compromise. That is what this is—it is a compromise, and compromise is good, but fairness, justice and equality are better. Therefore, despite the fact that these amendments go some way to making what was really bad legislation slightly less bad, they are simply papering over the cracks.
Once again, we are being asked by the Government to keep incrementally changing this law from the early 1980s—each time it has been changed with one case law or one individual situation—so that more and more people in this country, from a wider and wider scope, with more and more different offences, are now included in a space where their citizenship can be stripped. Therefore, we have an opportunity in this House to, once again, incrementally, make a bad law slightly less bad—or we can take a position and say that the underlying law itself is so bad that we are no longer prepared to keep making these incremental changes.
This takes the bad law a little further. If we go back to what this law actually does, first, it strips citizenship from those who were born and raised here, know nowhere else and whose family have been here for generations, but who are deemed to have—they do not actually have—another citizenship through some tenuous link to a country that their grandfathers or great-grandparents may have come from. Secondly, under this law, in our courts in the United Kingdom we punish two people convicted of the same crime differently based upon their heritage—not on the crime committed, but on their heritage. That is what the underlying law does.
I take issue with the idea that these people are not second-class citizens; they are. Let me give an example. My grandfather came here in the 1950s; my father came in the 1960s. I was born here; I have no other citizenship. My children were born here; they have no other citizenship. My grandchildren have been born here; they have no other citizenship. However, if my grandchildren—we all bring our children up well, not to commit crime, but we can never predict how their lives will turn out—were to commit not just a terrorist offence but a criminal act such as a sexual offence or an offence involving fraud, they could, in court, be punished for the crime but also have their citizenship stripped. That is fact. That makes me a second-class citizen. It makes my children second-class citizens. It makes their children second-class citizens. How far back do we go before we say to people that they are as equal as anyone else in this country?
Today, by supporting the amendment in the name of the noble Baroness, Lady D’Souza, we can say, from this House, that despite all the assurances and the changes, we believe in equality for all in this country.  My noble friend mentioned New Zealand and Australia, and I accept that changes have been put in place there; safeguards have been put in place where it is deemed not fit to serve notice. But we also have allies, such as the United States and Canada, who simply do not even have the law—they do not believe that we should be stripping our citizens of their citizenship.
The current law has been used throughout two decades of the war on terror, during the rise of ISIS, and while terrorist fighters from the United Kingdom have been going overseas. Over the years, we have managed to use the law, without this additional incremental change, to ensure that we have stripped people who we consider to be dangerous of their citizenship. We have managed under the current law; this further change is not required.
In conclusion, we may not have taken this moment to put right the wrongs of the past—many noble Lords, including many noble friends from my own Benches, stood up and asked for the original law to be considered. However, the least we can do is to stop a bad law becoming worse. If the noble Baroness, Lady D’Souza, tests the opinion of the House, I urge Members to vote for it because I will be voting for it, too.

Lord Pannick: My Lords, I shared the concerns expressed by my noble friend Lady D’Souza about Clause 9 as it was originally drafted. However, I am very satisfied with the amendments tabled by my noble friend Lord Anderson, particularly as the exercise of these powers is subject to the control of the independent Special Immigration Appeals Commission. I say to the noble Baroness, Lady Bennett, that this is not to have trust and faith in the Home Office. Whether or not that is justified, I have trust and faith in the independent Special Immigration Appeals Commission. I say to the noble Baroness, Lady Warsi, that this is not a compromise or papering over the cracks. Rather, this is a great tribute to the noble Lord, Lord Anderson, and to the work done by the Minister: it is to achieve the protection of both the public interest and the rights of individuals. This is what this House should be aiming to do.

Lord Mackay of Clashfern: My Lords, I had the honour, with the then Leader of the House, to present to this House the 1981 Bill which became the Act. We certainly understood that it was a very drastic power which enabled citizenship to be taken away. Therefore, it was only right that notice should be required, and provided for, in Section 40(5) of that Act. It included the need to make clear to the person affected that the application was on. It used the last known address as a possibility. However, the more that difficulties arise, the more it is seen that something further is required. Therefore, it is right that Section 40(5) should be amended. I think that the amendments, as now proposed—and subject to the amendments of the noble Lord, Lord Anderson of Ipswich, if, as I hope, the Government will accept them—are an acceptable way of dealing with this very delicate matter.
I agree entirely with what the noble Lord, Lord Pannick, said, that the real and ultimate protection is in the independent judicial review by the special  court for that purpose. It is essential that, as this nation is subject to many different ways of being attacked, we should be protected as much as possible. This is a very sensible way to do it, provided that the Government are prepared to accept the proposal of the noble Lord, Lord Anderson of Ipswich.

Lord Hodgson of Astley Abbotts: My Lords, I spoke in Committee and, obviously, after two and a half hours then and 50 minutes now, one is in danger of ending up with—in that famous phrase of the football manager—a sense of déjà vu all over again. I will try to avoid that and just raise a couple of points.
I listened very carefully to what was said by the noble Baronesses, Lady D’Souza and Lady Bennett, and the right reverend Prelate—and I am not a lawyer. I also listened again to my noble friend Lady Warsi—having heard her passionate speech at the earlier stage—and the noble Baroness, Lady Mobarik. I did not see the provisions of Clause 9 as an attack on people, and particularly not an attack on a particular part of our community. I saw the clause as a defence of the values that tie us all together and the glue that binds our society: the tolerance, freedom of speech and economic opportunity that has brought people to this country over the years, some more recently than others. That has been the essence of the attractions that have brought people here.
However, I was extremely concerned, and pointed out in Committee, that there was a gap in the arguments using the phrase
“conducive to the public good”.
I was worried about that, but I said—and still believe—that there is a need for the Government to protect the citizens of the country and that that is the overriding proposition we need to follow. Do I find the issues of Clause 9 easy? I do not. Do I wish we did not have to have Clause 9? I do so. But there are evil people about and wishing will not make it so. I thought in Committee, and still think now, that the underlying purpose of Clause 9 is right.
I pointed out in my speech then that, without the informed consent of the population of the country, the respect for and the importance of the rule of law become undermined. The travellers on the Clapham omnibus would regard some of the issues that have been raised this afternoon—such as having to send a courier into an extraordinarily dangerous country and put his or her life at risk—as a perverse outcome.
I recognise that there is a gap. I said that I hoped there would be some opportunity for smoothing some of the sharp edges in Clause 9 as originally drafted. As a non-lawyer, it seemed to me that the amendment from the noble Lord, Lord Anderson, answered the points that were made. Can it answer all the points? No, but it answers them effectively. It seems to provide a means to smooth the corners or close the gap—whichever metaphor you wish to use.
I would support the Government, whatever happened, as I think the underlying purpose of Clause 9 outweighs the disadvantages. However, I hope very much that my noble friend will be able to see the advantages of the amendments from the noble Lord, Lord Anderson, and will be able in that way to make the compromise that I think makes the argument unanswerable.

Baroness Mobarik: My Lords, I speak in support of the amendment from the noble Baroness, Lady D’Souza, to leave Clause 9 out of the Bill. I find it difficult to comprehend that we are even debating something so out of step with our rules of justice and fairness. Depriving someone of their citizenship without even informing them, as would be the case if Clause 9 were to be enacted into law, is in effect an addition to the already punitive measures that have existed since 1918.
As the noble Lord, Lord Macdonald of River Glaven, stated, Clause 9 effectively removes the right of appeal, which has evolved over the decades to become ever more powerful. If the Home Office deems it to be in the public interest or, as is worded,
“conducive to the public good”,
then the long-standing position under the British Nationality Act 1981 that an individual must be notified if they are to be deprived of their nationality is being amended, so that they do not even have to be informed. Currently, citizenship deprivation letters can be delivered to the individual’s last known address, so why are we changing that? Essentially, over this past decade, the Government have failed to provide notice on many occasions, and it appears they are now seeking to declare all unlawful deprivation orders as lawful by making Clause 9 retroactive.
Clause 9(5) purports to make lawful deprivation orders which courts have found unlawful because of failure to give notice. That is making lawful a breach of requirements as laid down by Parliament, after the fact. This completely undermines the rule of law as we understand it. While I support the amendments of the noble Lord, Lord Anderson of Ipswich, which would provide some safeguards on the use of Clause 9, the amendment in the name of the noble Baroness, Lady D’Souza, to remove the retroactive application of Clause 9 in its subsections (5)(6) and (7), should be considered seriously.
Former Prime Minister Sir John Major has warned that we should search our souls before taking this step. Others such as the Institute of Race Relations, the House of Lords Constitution Committee, the think tank Policy Exchange and the former Attorney-General Dominic Grieve, as well as five separate UN bodies, have stated that such deprivation orders made under Clause 9 are likely to be discriminatory and unlawful. I hope that we would give attention to such notable organisations and individuals.
I add that I support in principle the amendment of the noble Baroness, Lady Bennett, to omit subsections (2) and (4) of Section 40 of the British Nationality Act 1981, but understand that it is probably outwith the scope of the Bill. However, we have to address this, because we are in danger of creating a two-tier system of citizenship.
The fact is that Clause 9 has a disproportionate impact on people from ethnic-minority backgrounds. As a person cannot be made stateless according to international conventions, by default it is more likely to affect those who have a connection to the Commonwealth or a country where they are entitled to dual nationality. But it is not even as obvious as that, for some Commonwealth countries allow dual nationality or will accept people if they have a connection through their parents or grandparents, while others do  not. Take south Asia, for example: while Bangladesh and Pakistan offer dual nationality to British citizens who have a direct link, India does not, so citizenship deprivation would not impact British citizens of Indian heritage. As I said in Committee, if Clause 9 is enacted into law, we are heading towards a society made up of degrees of citizenship, where some are full citizens while others are half-citizens and others somewhere in between.
Growing up between two distinct cultures, one is acutely aware of certain idiosyncrasies and traits which define each. The core values are, of course, the same, but there are always certain endearing features: the British sense of humour, with its self- deprecation and the ability to laugh with others at one’s own expense is one. The other is this sense of fairness. How often do we hear the phrase “That’s not fair”? Then there are all the variations: “Let’s be fair”, “Fair enough” and “Fair is fair”. Do noble Lords think it fair to have a two-tier system of citizenship? Do we think it is fair to deny someone their citizenship without informing them?
I understand that our intention is to root out ruthless individuals and deny them entry to our country, which is absolutely right. Not one of us would disagree that we must do everything to protect our people, but it begs the question: will it protect our citizens to have ill-intentioned people free to continue to conspire against us elsewhere, rather than having them locked away safely, following the rigours of our excellent courts? It also begs the question: what if there is a mistake, as has already happened in the case pointed out by the noble Baroness, Lady Bennett, of the British Bangladeshi man referred to as E3? He spent five years in Bangladesh trying to get back, having had his citizenship revoked without him even being informed. He eventually got back, as there was no evidence that he had committed any crime or had any intention of doing so—a completely innocent man, wrongfully accused. Was that fair or unfair?
Britain has a proud tradition of justice, equality and fairness. Let us keep it that way.

Baroness Verma: I was not intending to intervene, but may I ask my noble friend the Minister whether there is any major change to the current law that forces the commentary that my noble friend has just made? I have seen on WhatsApp groups worried people and citizens of this country with a lot of misinformation, and I have gone through the Bill and fact sheets and tried to get my head around what this is about—apart from the fact that we want to make sure that people are aware when their citizenship may be taken away, when they cannot be reached, and that is not based on anything other than their performing a criminal or terrorist act.
May I have some clarification? Sitting here, I have listened very carefully to every contribution made today, and while there are lawyers among us who know the details very well, ordinary citizens out there—people in groups with WhatsApp messages going around—are very frightened. They feel very scared, and they need to know that this is not the case.

Lord Marlesford: My Lords, I support the amendments from the noble Lord, Lord Anderson. I think that the way this matter has been handled reflects extremely well on the flexibility and the detailed application of the minds of Members of your Lordships’ House in dealing with very great problems, especially when these problems are new and have recently arisen.
I was struck by the words of my noble and learned friend Lord Mackay of Clashfern, when he referred to the fact that when the 2011 Act was passed, he could not have imagined the need for these arrangements. Let us be aware that the thing that is new is the creation of a new political body, which has nothing do with religion, the Islamic State. It claims the ability to grant citizenship and demands loyalty but also—by definition, because it believes in theocracy rather than democracy, and the theocracy itself is an aberration with little to do with the noble aspects of Islam—believes in something that puts its members in permanent enmity with this country. They deny the right of other states to exist, which is why, of course, we should be taking steps to defend the realm against the possibility of such people using citizenship for the destruction of this country.

Lord Paddick: My Lords, although at first glance it would seem reasonable for the Home Office not to have to give notice to a terrorist overseas that they were being deprived of their British citizenship, it of course means that there is no effective right to appeal, as the subject would be unaware of the decision. We have also seen cases where the Home Office could have given notice, even to the last known address or by email, and chose not to. The increase in the use of this power needs to be reversed.
The amendments proposed by the noble Lord, Lord Anderson of Ipswich, seek to introduce a range of judicial oversights, would remove the subjective element of the decision and tighten the grounds on which a deprivation of citizenship order may be made without notice to the person concerned. Others would strengthen the test for making such a decision; ensure, if the person concerned contacts the Home Office, that he is told what has happened and that he has a right of appeal; and allow the Special Immigration Appeals Tribunal to oversee such decisions. Any time limit on appeal would start when the subject is notified.
I understand that a government Minister would have signed these amendments from the noble Lord, Lord Anderson, had they not been out of time—the deadline for tabling government amendments being several days before that for other amendments. I pay tribute to the noble Lord, Lord Anderson, for the time, effort and ingenuity he has brought to bear in bringing forward such a comprehensive suite of amendments that could arguably halt, if not throw into reverse, the current practice by the Home Office increasingly to use this power to deprive citizenship without notice. We wholeheartedly support these amendments.
However, were the House to divide on taking Clause 9 out of the Bill, we would, along with the right reverend Prelate the Bishop of Chelmsford, support that Division. At the end of the day, the Government should be taking ownership of the actions of British citizens,  including terrorists overseas, ensuring, wherever possible, that they are extradited to the UK to stand trial, rather than depriving them of British citizenship, preventing them returning to the UK, and making them some other country’s problem, whether with notice or not. However, while therefore agreeing with much of what the noble Baroness, Lady Bennett of Manor Castle, has said, we are unable to go so far as to support her amendment, as there could be exceptional cases where, as a last resort, citizenship should be removed.

Lord Rosser: I think I am right in saying that until the noble Lord, Lord Paddick, spoke, all those speakers who had spoken against Clause 9 were noble Baronesses. I am not sure what the significance of that is, and I do not say that in any wrong way; I think it is a great credit to them. Like the noble Lord, Lord Paddick, I hope they will forgive me for intruding on their space.
Although we appreciate that the amendments tabled by the noble Lord, Lord Anderson of Ipswich, are certainly an improvement on Clause 9—I, too, would like to express my thanks to the noble Lord for all the work I know he has put in—as it stands, we do not feel the case has been made by the Government for why Clause 9, and deprivation of nationality without prior notice to the individual concerned, are actually necessary. That is what we are talking about: not whether nationality should be removed but whether it should be possible for the Secretary of State to remove it without prior notice.
Currently, under the British Nationality Act 1981, an individual must be notified if they are to be deprived of their citizenship. So what is the problem when, for example, the present rules already allow for citizenship deprivation letters to be delivered to an individual’s last known address, or to a parent, or to a parent’s last known address? I say that against the background that the Government have already said there have been no cases where the requirement to give notice has stopped—prior to the recent High Court decision—a deprivation of citizenship order coming into being. It is also against a background where the number of people deprived of their citizenship has risen considerably over the last 12 years—an upward trend with a peak, I think, in 2017.
One thing we can be sure of is that if the Government have the powers under Clause 9, even with the amendments of the noble Lord, Lord Anderson of Ipswich, we will see deprivation of citizenship orders being made without prior notice, because if it is not the Government’s intention to take advantage of the powers to deprive a person of their citizenship without prior notice, why are they seeking them? Against that scenario, we need to be satisfied that there is a real and overriding necessity for this additional power now, when it has not been deemed necessary before, beyond it being perhaps more convenient or helpful on occasions not to have to go through the procedure of giving prior notice to the individual concerned. The lack of a compelling and meaningful government response on that point, and there having been no cases where the requirement to give notice has stopped the deprivation of citizenship order coming into being, is significant.
If a proven national security need does arise for the power not to have to give prior notice of a deprivation of citizenship notice coming into being, the Government can get such necessary legislation through Parliament, as we know, with remarkable speed. In the absence of such a case being made for this power—and the lack of it clearly has not caused a serious difficulty until now—we should be wary of agreeing to Clause 9, even as amended, remaining in the Bill.
I suggest that the situation has not been helped by finding out from information in the Court of Appeal decision that in the D4 case the Home Secretary
“argued that notification had been given to D4 … by simply placing a note on her Home Office file, relying on regulations introduced without parliamentary approval.”
That ought to make us very wary about giving the Secretary of State and the Home Office the additional powers in Clause 9, now that we know how existing statutory powers and requirements on notification have been interpreted and implemented in the D4 case.
The consequences of the clause are likely to be felt most—but certainly not exclusively, as the noble Baroness, Lady Mobarik, said—by those from ethnic minority backgrounds. It is no surprise that it is in this area that the Bill, particularly Clause 9, has caused most concern about how the new powers might be applied and interpreted and what the evidence is that they are needed now and have not been needed before.
It is unlawful to deprive someone of their citizenship and leave them stateless. Even so, the Home Office is still on record that British citizenship
“is a privilege, not a right”.
Yet without citizenship people do not have rights, and we are talking about significant rights. It has been estimated that nearly 6 million people in England and Wales could be affected, and that under this proposal two in five British citizens from an ethnic minority background are eligible to be deprived of their citizenship without being told, since they have, or may have, other citizenships available to them—I think that was the basis of the comment about two classes of citizenship—compared with one in 20 characterised as white. That is a sobering consideration for the Government, or should be, when looking at the merits or demerits of Clause 9, not least in the light of how the Secretary of State and the Home Office in the D4 case interpreted and implemented the requirement to give prior notice under the law as it exists at present. What would be tried if Clause 9, even as amended by the amendments by the noble Lord, Lord Anderson, gave the power not to have to give prior notice?
The right reverend Prelate the Bishop of Chelmsford raised the issue of trust, or rather the lack of it, among society groups. The Government ought to reflect very carefully on that in considering whether Clause 9, even as amended, should remain in the Bill. I have to say that as far as we are concerned the case has not been made for Clause 9, even as amended, to remain in the Bill, and we shall certainly be looking for an opportunity to vote against it.

Baroness Williams of Trafford: My Lords, I thank all noble Lords who have spoken in this debate, especially the noble Lord, Lord Anderson, who has tabled  these amendments; I am very grateful for his expertise in this matter. I also acknowledge Amendment 20, tabled by the noble Baroness, Lady D’Souza, and Amendment 22, tabled by the noble Baroness, Lady Bennett of Manor Castle.
The House will recall that we debated this matter at length in Committee. I say now, as I said then, that inaccurate and irresponsible media reporting continues to fuel fear and concern about how Clause 9 is to operate. I will repeat what I said then, starting with my noble friend Lady Verma: the deprivation power itself is not altered. Clause 9 does not alter the reasons why a person is to be deprived of British citizenship and we are not stripping millions of their citizenship.
To answer the noble Baroness, Lady D’Souza, and others, Clause 9 does not target dual nationals, those from ethnic minorities or particular faiths, or indeed women and girls; there is no secret decision-making, and law-abiding people have nothing to fear from Clause 9. It is simply about the mechanics of how a deprivation decision are conveyed to the individual concerned.
To answer the right reverend Prelate the Bishop of Chelmsford, the deprivation power is compliant with the UN Convention on the Reduction of Statelessness and the 2014 power has never been used. To answer the points made by the noble Lords, Lord Macdonald of River Glaven, Lord Rosser and Lord Paddick, deprivation of citizenship on conducive grounds is rightly reserved for those who pose a threat to the UK or whose conduct involves very high harm. It is not for minor offences. Deprivation on fraud grounds is for those who obtain their citizenship fraudulently and therefore were never entitled to it in the first place. Decisions are made following careful consideration of advice from officials and, in respect of conducive deprivations, lawyers, and in accordance with international law, including the UN Convention on the Reduction of Statelessness, as I said. To answer the point made by the noble Lord, Lord Rosser, two in five UK citizens are not high-harm individuals.
The noble Lords, Lord Anderson and Lord Carlile, very helpfully gave some examples and I will add to them. In cases where we do not have a last known address—regarding my noble friend Lady Mobarik’s point—we may not have it, or to use it would be damaging to national security, which is a good reason for this provision. If you imagine someone who has been spying for another country against the UK and is now living at an unknown address in that country; or the head of an organised crime group whose current whereabouts is only known through a police informant and to use the address would put the life of the informant at risk; or an ISIL supporter who has committed terrorist attacks and is hiding in the mountains in Syria, these are very good examples of why we would need to use the no-notice power.
Such people pose a direct threat to the safety and security of the UK, and it simply cannot be right that our hands are tied because we cannot take away their British citizenship without giving them notice of that decision. Where we have already taken a decision to deprive someone of citizenship, it is essential that the  decision remains valid and lawful to stop these dangerous and high-harm individuals from using their British passport to enter the UK. That is why Clause 9 is absolutely necessary. On my noble friend Lady Mobarik’s point of “Just lock them up”, they will get out eventually and therefore potentially do this country harm.
Amendment 22, tabled by the noble Baroness, Lady Bennett of Manor Castle, seeks to repeal the power to deprive a person of citizenship on conducive grounds, but presumably not for fraud, as the noble Lord, Lord Carlile, said; that is, use it for fraud but not for terrorists. I find that absolutely baffling. It would completely remove the Home Secretary’s ability to make a deprivation decision in relation to those high-harm individuals and so leave them free to travel in and out of the UK at will. As I have said before, it is the Government’s duty to keep the public safe and we make absolutely no apology for seeking to do so.
The noble Baroness also made the point about making a deprived citizen another country’s problem. They are not necessarily another country’s problem if they are deprived of their citizenship. The noble Baroness, along with my noble friend Lady Mobarik, also talked about just using the criminal justice system. But because the burden of proof for the criminal justice system is higher than that for immigration and nationality decisions, we might not be able to use intelligence for a prosecution as it would prejudice national security.
What the Government do accept is that Clause 9 as currently drafted does not make the case sufficiently clear for not giving notice of deprivation and I am most grateful to the noble Lord, Lord Anderson, for his Amendment 16, which does exactly that. It is not, as the noble Lord, Lord Paddick, says, a compromise; it provides for safeguards and oversight, and that can only be a good thing.
We also accept the concerns expressed by my noble friend Lord Hodgson that Clause 9 could be misused. He believes that the process of judicial oversight suggested by Amendments 19 and 14 would protect the provisions of Clause 9 from such misuse.
I turn to the right of redress. Much has been made in the media about Clause 9 removing a person’s appeal rights because they will not know that the Home Office has made a decision to deprive them of British citizenship. The Government have repeatedly been clear that the statutory right of appeal is not changed by Clause 9, but I understand that this is far too important to leave to chance. Amendment 17 therefore obliges the Secretary of State to give a person the notice of deprivation when they make contact with the Home Office, while Amendment 18 confirms that a person retains the statutory right of appeal against a decision to deprive them of British citizenship, even if they do not become aware of it until some time after the decision has been made. These seem very sensible safeguards.
The noble Baroness, Lady Bennett of Manor Castle, and my noble friend Lady Warsi talked about deprivation creating a two-tier society. Deprivation on conducive grounds is used extremely sparingly—in 19 cases per year on average—against those who pose a serious threat to the UK. It is right that the conducive power is limited so that it can be applied only to those who  are dual citizens or where there are reasonable grounds for believing that a person can become a national of another country. Parliament chose to enact that power on that basis to avoid the prospect of leaving individuals stateless, which would be contrary to the UK’s commitments under the 1961 statelessness convention.
My noble friend Lady Mobarik asked how somebody can challenge their deprivation if they do not know about it. We will always try to serve a deprivation notice at the point of decision, including information about the person’s statutory appeal rights. Where this is not possible and the person later makes contact with the Home Office, they will be issued with the decision notice and an explanation of their appeal rights so that they can seek to exercise their statutory right to appeal the decision.
The final points I will make, although I have made them throughout my speech, are in reply to the noble Lord, Lord Anderson, who asked me to confirm two things. The first was whether anyone subject to a notice of deprivation could contact the Home Office to find out. The answer is yes. The second was that the Home Office will not suggest that people are out of time for an appeal. Again, the answer is yes.
In closing, I remind the House that depriving someone of their British citizenship is extremely serious. It is used sparingly and only against those whose conduct involves very high harm, those who pose a threat to the security of the UK or those who obtained their citizenship by fraudulent means. Preserving this power is vital to protect the integrity of the UK immigration system and the security of the UK from those who wish to do us harm.
I hope that the noble Baroness, Lady Bennett of Manor Castle, will not press Amendment 22, and that the noble Baroness, Lady D’Souza, will not press Amendment 20, but the Government are content to accept the amendments from the noble Lord, Lord Anderson.

Lord Anderson of Ipswich: I am grateful to all noble Lords who spoke in this debate on a subject that I suspect none of us found particularly easy. I do not want to pre-empt anything, but it is possible, having heard the debate, that my amendments may not be very controversial. My noble friend Lord Carlile was alone in suggesting that these amendments go too far; he always was a little bit tougher than me. The real question for your Lordships might be whether they go far enough—whether, in short, we stick with my amendments or, as the opposition Front Benches maintain, twist by removing the whole clause.
The manuscript amendment shone a spotlight on subsections (5) to (7), which my amendments do not touch. With great respect to the noble Baroness, Lady D’Souza, it is not right that the effect of those subsections is that pre-commencement deprivation orders would, as she put it, not be subject to scrutiny. Their effect is rather that a pre-commencement deprivation would not be invalid purely because it was served to the file, in accordance with the Immigration Rules then in force.
Subsections (5) to (7) do not prevent a person who becomes aware of the deprivation—as the Minister just confirmed just now, they have only to ask—appealing  it on any substantive ground. Indeed, the Minister also just confirmed, in providing the other undertaking that I sought, that the Home Office would not suggest that such appeals were out of time.
As to the suggestion that Clause 9 should be removed in its entirety, when I secured the agreement of the Government to my amendments, noble Lords will understand that it was not with a view to pocketing the gains and then asking for more. Therefore, I cannot in all conscience support that amendment myself, either as a tactical gambit or in the substance. I do, however, support my own amendments and I beg to move.
Amendment 14 agreed.

  
Clause 9: Notice of decision to deprive a person of citizenship

Amendments 15 to 19

Lord Anderson of Ipswich: Moved by Lord Anderson of Ipswich
15: Clause 9, page 11, line 31, leave out “it appears to the Secretary of State that”Member’s explanatory statementThis amendment removes the subjective element from the condition in paragraph (a) of new subsection (5A)(notice of deprivation of citizenship not required if Secretary of State does not have the requisite information).
16: Clause 9, page 11, leave out lines 35 to 41 and insert—“(b) the Secretary of State reasonably considers it necessary, in the interests of—(i) national security,(ii) the investigation or prosecution of organised or serious crime,(iii) preventing or reducing a risk to the safety of any person, or(iv) the relationship between the United Kingdom and another country,that notice under that subsection should not be given.”Member’s explanatory statementThis amendment limits the grounds on which a deprivation-of-citizenship order may be made without notice to the person concerned, and also strengthens the test, so that one may only be made if the Secretary of State reasonably considers it necessary.
17: Clause 9, page 11, line 44, at end insert—“(5C) Subsection (5D) applies where—(a) the Secretary of State has made an order under subsection (2) and, in reliance on subsection (5A), has not given the notice required by subsection (5), and(b) the person in respect of whom the order was made makes contact with the Secretary of State for the Home Department.(5D) The Secretary of State must, as soon as is reasonably practicable, give the person written notice specifying—(a) that the Secretary of State has made the order,(b) the reasons for the order, and(c) the person’s right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997.(5E) Schedule 4A makes provision for the Special Immigration Appeals Commission to consider a decision of the Secretary of State not to give notice to a person before depriving them of a citizenship status on the grounds mentioned in subsection (2) (deprivation conducive to the public good).”   Member’s explanatory statementThis amendment inserts three new subsections into section 40 of the BNA 1981. The first two provide for late notice to be given to a person who has been deprived of their citizenship without notice if they subsequently make contact with the Home Office. The third introduces the new Schedule 4A to the British Nationality Act 1981, which provides for the Special Immigration Appeals Commission to oversee decisions to deprive a person of their citizenship without notice.
18: Clause 9, page 12, line 9, at end insert—“(b) after subsection (2) insert—“(2A) In the case of an order made as described in subsection (1)(b), for the purposes of any rule or other provision limiting the time within which an appeal under this section may be brought, time does not start to run unless and until the person is given notice of the fact that the order has been made (see section 40(5D) and Schedule 4A).”Member’s explanatory statementThis amendment provides that in a case where a person is deprived of their citizenship without notice, time for bringing an appeal will not start to run unless and until they are subsequently given notice.
19: Clause 9, page 12, line 9, at end insert—“(3A) After Schedule 4 to the 1981 Act insert the Schedule 4A set out in Schedule 1A.”Member’s explanatory statementThis amendment inserts the new Schedule 4A into the British Nationality Act 1981.
Amendments 15 to 19 agreed.
Amendment 19A not moved.

Amendment 20

Moved by Baroness D’Souza
20: Clause 9, leave out Clause 9

Baroness D'Souza: My Lords, having listened with great care to a number of Lords speak about Clause 9, I think it is accepted that citizenship of the UK is an enormous privilege, but it is also a right. It seems that, despite the wonderful amendments tabled by the noble Lord, Lord Anderson, there remain sufficient loopholes in Clause 9 for it to become, once on the statute book, a hostage to fortune. In view of that, I would like to test the opinion of the House.
Ayes 209, Noes 173.

Amendment 20 agreed.

  
Clause 10: Citizenship: stateless minors
  

Amendments 21 to 23 not moved.

Amendment 24

Lord Judge: Moved by Lord Judge
24: Before Clause 11, insert the following new Clause—“Compliance with the Refugee ConventionNothing in this Part authorises policies or decisions which do not comply with the United Kingdom’s obligations under the 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees.”Member’s explanatory statementThis new Clause reflects the Government’s stated intention of compliance with the Refugee Convention and ensures Part 2 provisions are read subject to that international legal obligation.

Lord Judge: My Lords, the noble Baroness, Lady Chakrabarti, has asked me to open the batting on this amendment. It is a very short, important and simple amendment that addresses an unnecessary problem. The Minister has told us—no doubt on the basis of legal advice—that the Bill in its present form is compliant with the 1951 convention and the 1967 protocol. In being so, the argument is, it will fulfil the Government’s repeated assertions that this is precisely what the Government intend. Indeed, the Minister said so in terms in answer to my request in Committee, and I apologise to her because at that late time of night I had simply missed what she said, or at least I had not fully absorbed it. She said:
“We are absolutely firm … that nothing in the Bill undermines our convention obligations”.—[Official Report, 10/2/22; col. 1985.]
So what is this all about?
I mean no disrespect to the Minister, of course not, but her statement is no more than mere assertion—an assertion of opinion based on what the department’s legal advisers have told and advised her. Some of us—indeed, many of us—share the Government’s apparently  absolute commitment to the convention, but we do not think that the Bill does. We believe that the Government are wrong. In our view, provision after provision in Part 2—the debate will happen later on—contravenes the convention. With many others, I shall support the later amendments that seek to achieve compliance, simply because we believe that the provisions are not compliant. Many of us are lawyers too; we have to address convention issues, but many of us are not lawyers and are simply reading what the proposed legislation actually says. We are convinced that, as things stand, the Bill contravenes the convention, and does so repeatedly.
This is not a lawyerly quibble: even as we speak the problems of refugees are being shown to us in Ukraine. Rather than a lawyerly quibble, what worries me is that the debate has gathered echoes of the Christmas pantomime: “Oh yes,” say the Government, “This Bill is compliant with the convention”, and I reply, on behalf of others, “Oh no it isn’t compliant”, and the Government say, “Oh yes it is”, and we say, “Oh no it isn’t”, and so it goes on. But this is not a pantomime; this is lawmaking. I suspect that I am not the only person here who thinks it is a very strange parliamentary debate in which honest views exchanged in this way overlook that this is a deeply sensitive debate about which there has been much human suffering. The level to which it has plunged in relation to the pantomime is really rather serious.
The only place where this “Oh yes it is, oh no it isn’t” exchange can be resolved is in the legislation itself. If it is accepted, this very simple amendment will achieve both the frequently declared intention of the Government and the objective of those of us who believe that the legislation fails to do so. Let me explain this in a few words.
In future cases, the court will be bound by the provisions of the legislation which we have enacted—by its statutory provisions, not by repeated government declarations of their intentions. Even an advocate of the immense standing of the noble Lord, Lord Pannick, who sought to rely, in court, on the repeated assertions of the declared intentions of the Government, was met with: “But that’s not what the legislation says”. Maybe the noble Lord, Lord Pannick, would have an answer to this, but even if he produced one, it would not be very effective.
If we are right—and I believe we are—then we have this absurdity whereby the expressed intentions of the Government will be defeated by their own legislation. That is rather stark. If the expressions on behalf of the Government are genuine—and, although she is not here, I do not for one moment doubt the Minister’s personal good faith—we really are in cloud-cuckoo-land. The amendment will avoid that absurdity. There will be no uncertainty or equivocation. Any decision or policy in relation to the provisions of Part 2, whatever form they may eventually take, will be subject to the convention and protocol. This is on the unequivocal basis that it is a primary requirement of the legislation that any decision of the Home Office officials responsible, and any decision of the court considering those decisions under Part 2, must comply with them.
There is nothing new about a provision like this. I am indebted to the noble Lord, Lord Pannick, among others, for drawing my attention to Section 2 of the Asylum and Immigration Appeals Act 1993. We are right here in this very field:
“Nothing in the immigration rules...shall lay down any practice which would be contrary to the Convention.”
This is all that we are asking for here. Let us have that principle set out in the Bill in the form of this amendment.

Viscount Hailsham: My Lords, those who heard the Minister outline the position of the Government earlier today with regard to the plight of Ukrainians must have been dismayed by his response. None the less, I make no personal criticism of him at all.
Some of us have in mind the cavalier attitude of Mr Johnson to treaties that he recently signed, such as the Northern Ireland protocol. When I consider many of the suggestions which come out of the Home Office as to how to deter migrants from coming to this country, I have no confidence that this Government will always comply with the letter—far less the spirit—of the convention. I do not suppose that the new clause proposed by Amendment 24 will be a complete remedy. However, it is a very useful statement of an important principle, and I shall vote for it.

Lord Rosser: Not surprisingly, there is nothing I could add to what the noble and learned Lord, Lord Judge, has said. We shall certainly be supporting this amendment if it ends up being put to a vote.

Baroness Hamwee: My Lords, from these Benches, I told the noble and learned Lord that we will be supporting him. He said that that was the right answer.

Lord Pannick: My Lords, I signed this amendment for all the reasons that were given by the noble and learned Lord and because it is of vital importance, especially at this time, that the legislature makes it clear that it intends and requires that the Government comply with their international obligations.

Baroness Jones of Moulsecoomb: The Greens support the amendment too.

Lord Wolfson of Tredegar: My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, for proposing the new clause. The noble and learned Lord, Lord Judge, said that it was a short one; I respectfully agree, and hope that I can be brief in response without any discourtesy to the noble and learned Lord or, indeed, the other proposers of the clause. One point in his speech on which I think the whole House agreed was when he reminded us that, whatever the question, the noble Lord, Lord Pannick, will always be able to think of an answer.
Turning to the subject matter of the amendment and the proposed new clause, I first underline what was said by my noble friend Lady Williams of Trafford as to the Government’s commitment to their international legal obligations flowing from the refugee convention. Not only is it our intention to continue to comply with all of the legal obligations under that convention but we consider that this legislation does precisely that.
Our starting point is that the provisions of the Bill are compliant with the refugee convention but, none the less, the new clause is not something that I can support. Let me set out why.
The refugee convention, as I have said before, and effectively by design, leaves certain terms and concepts open to a degree of interpretation. That is an important feature of international instruments such as the refugee convention, allowing it not only to stand the test of time—some might say that it could now usefully be reviewed, but that is a separate point—but, more importantly, to be applied in and across many jurisdictions with differing legal systems. Necessarily, therefore, there is then a need to ascribe meaning to the terms of the convention at a domestic level. That meaning is determined by each signatory to the refugee convention in accordance with the principles of the Vienna convention, taking a good faith interpretation in accordance with the ordinary meaning of the language used in the convention.
Against that background, I suggest that it is absolutely right that Parliament may pass legislation setting out how the UK interprets the refugee convention and the UK’s obligations under it. Having a clear framework of definitions, and setting out unambiguously the key principles, promotes clarity and consistency in how decisions are made; as I have said in previous debates, that is a desirable approach. The mischief that I see in this amendment is that it would risk undermining the clarity and certainty that we are trying to create by effectively giving the courts a chance to look behind the interpretation agreed by Parliament in primary legislation when that interpretation is then applied through policy and subsequent decisions.
On the one hand, we want to give the pen to Parliament, so to speak, to set out a clear understanding and interpretation of the convention; Part 2 of the Bill is very clear as to our intentions in this respect. However, I suggest that this amendment would afford the courts an opportunity to come to a different understanding when looking at the policies and practices which put that system into effect. Of course, I accept that it will be for the courts to interpret the legislation once enacted, and I do not disagree that the courts have a role in overseeing whether policies or decisions comply with the interpretation of the convention as set out in the Bill; that is a given. But it is Parliament’s interpretation that is key here. It is not for the court to set out its own, potentially conflicting interpretation of the refugee convention and the obligations under it.
Therefore, far from creating a certain and consistent approach, this promotes uncertainty with policies and decisions being potentially judged against differing interpretations. If we are content, as I suggest we should be, that Parliament is legislating in compliance with the approach open to all state parties under the Vienna convention—that is, affording a good faith interpretation to the refugee convention—then this clause is not only unnecessary but promotes confusion and uncertainty for all those seeking to apply to, and comply with, the asylum system.
It would also be unusual to put in primary legislation the statement that Parliament, when legislating, is complying with its international obligations. International conventions cover a wide area of legislation, and if we  did so here it could create questions as to why we did not do so in other statutes and why other statutes do not provide the same assurances.
The noble and learned Lord, Lord Judge, as alerted by the noble Lord, Lord Pannick, mentioned Section 2 of the Asylum and Immigration Appeals Act 1993. That already sets out the primacy of the refugee convention in domestic law. I will repeat what it says:
“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.”
Accordingly, if the aim of this proposed new clause is that the policies implemented under Part 2 of this Bill through the rules or connected guidance are meant to be compatible, and not incompatible, with the refugee convention, as interpreted by Parliament in this Bill, that can already be challenged by way of Section 2 of the 1993 Act. Our policies and decision-making will continue to be made in accordance with the Immigration Rules or published guidance.
What, therefore, would this proposed new clause add? My concern is that it adds a means for the court to question the interpretation given by Parliament to the refugee convention. I suggest respectfully that this would be contrary to a fundamental purpose of this Bill: for Parliament to define the nature of our obligations under the refugee convention while remaining compliant with those obligations. The proposed new clause potentially leaves the nature of obligations and terms under the convention open to the interpretation of the courts, removing the certainty that we are trying to achieve.
To put it in two sentences, if the aim is to make sure that the Immigration Rules and guidance are compliant with the refugee convention, that is already done under the 1993 Act. If the aim is any more than that, I respectfully suggest that it trespasses on a fundamental purpose of this Bill: that Parliament, and not the courts, should interpret how the UK implements the refugee convention. For those reasons, I respectfully invite the noble and learned Lord to withdraw the amendment.

Lord Brown of Eaton-under-Heywood: Before the noble Lord sits down, do I understand that it is the Minister’s intention that, if this Bill is passed in its present form, in future no court shall look behind its provisions and consider what, under the convention and with the advice of UNHCR, its proper application and interpretation are? Is that the Minister’s intention?

Lord Wolfson of Tredegar: In so far as the court has been told by Parliament that it can do that in the 1993 Act when it comes to the Immigration Rules, the court can do so. But, with the greatest respect, the courts interpret legislation; they are not there to go behind legislation with an autonomous meaning, so far as the courts are concerned, of what the refugee convention means. What the convention means is a matter for the member states, each interpreting it under the terms of the Vienna convention. With respect, it is not for the courts to second-guess Parliament’s interpretation of the UK’s obligations under the refugee convention.

Lord Judge: My Lords, faced with the problems to which Part 2 gives rise, we end up, on the basis of the Minister’s response, with the situation in which the  court will look at provisions that we say contravene the convention and say, “Ah, Parliament has said that this provision must apply. Although it contravenes the convention, it must still be applied.” The court must do so, notwithstanding that the intention of the Government was that the provision should be compliant.
We are going around in circles. We are back to “Oh, yes, it is” and “Oh, no, it isn’t”, and that is no way for us to be on a measure of such crucial importance to many people suffering from the consequences of persecution, war, famine and so many things that afflict other nations and with which fortunately we are not afflicted. The House really ought to decide this. I ask the House to decide and tell us what its decision is.
Ayes 218, Noes 140.

Amendment 24 agreed.

  
Clause 11: Differential treatment of refugees

Amendment 25

Baroness McIntosh of Pickering: Moved by Baroness McIntosh of Pickering
25: Clause 11, page 13, line 33, leave out “a refugee is a Group 1” and insert “a person is a”Member’s explanatory statementThis amendment ensures equality of treatment by removing the distinction between Group 1 and Group 2 refugees.

Baroness McIntosh of Pickering: My Lords, when I tabled these amendments, I had sought to seek a greater reassurance from my noble friend the Minister than I achieved in Committee. Obviously, I realise, given the result of the last few votes, it may be that Amendment 28, in the name of the noble Lord, Lord Kerr of Kinlochard, and others, will find greater favour with the House. However, I shall take this opportunity to set out my opposition in principle to what the Government are seeking to do here: it is not just the fact that two groups are being created, but the way in which those two groups will be treated differently.
Perhaps the most offensive provision in Clause 11 is subsection (5). The Explanatory Notes refer to it as
“differential treatment of refugees based on their group. Differences may, for example, apply in terms of the duration of their permission to remain in the UK, the availability of routes to settlement, the ability to have recourse to public funds, and the ability of family members to join them in the UK. There is no obligation for these powers to be exercised and discretion may be applied.”
The greatest difficulty that I have is that it is not clear that there will be discretion or, indeed, how that discretion will be applied.
I hate to say it to my noble friend, but I find it offensive that this differential between groups 1 and 2 has been created. In taking the two groups out and substituting the general term “person”, I draw attention to Amendment 27, which asks for “reasonable discretion” to be exercised. I believe that is the key to all the amendments before us. This comes directly from the advice that I have received from the Law Society of Scotland as to how the provision will apply, if the original clause is left unamended. It says:
“We take the view that how a person enters the UK should not impact on family reunion. Safe and legal routes have been reduced since the UK left the European Union with the removal of the Dublin III Regulation. This provision appears to be actually reducing the prospect of families using one of only the two safe and legal routes the Asylum seeker has i.e., refugee family reunion – the other being UNHCR resettlement. Fewer safe and legal routes are likely to result in more unsafe and perilous journeys.”
Given the new situation arising daily in Ukraine, and the dreadful humanitarian crisis that we see there, I hope that the Government will resist the provisions in the clause and look favourably on my amendments and think again—but I fear that perhaps the House will favour the amendment in the name of the noble Lord, Lord Kerr of Kinlochard. I beg to move.

Lord Kerr of Kinlochard: My Lords, I welcome the new clause proposed by the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Judge, but we need to do a belt-and-braces job here. I am afraid we have to go back to the issue of compatibility and “Oh yes it is; oh no it isn’t.”
In Clause 11, we are introducing something entirely new. This two-class categorisation of refugees—the real refugees who came direct and the class 2 refugees who did not—is not anywhere in the refugee convention. None of that is in the refugee convention. The Government say that it is all perfectly compatible with the convention and assert that it is our right to interpret the convention in this new way, differently from the way that it has been interpreted up to now by our courts, differently from the way that the UNHCR, the  custodian of the convention, interprets it in its authoritative judgment on our Bill, and differently from the way in which 146 signatory states interpret it.
We did the “Oh yes it is; oh no it is not” game at length in Committee and the Government stuck to their view, but I think it is fair to say that the Committee found it rather hard to understand the Government’s view. I wondered whether the Minister perhaps let the cat out of the bag when he told us:
“It may … be”—
to be fair, he did put it tentatively—
“that a convention entered into in 1951 is not absolutely suitable for the world of 2022.”—[Official Report, 8/2/22; col. 1463.]
Tonight, we heard the Minister seeming to hint that it might be time to review the convention as if it was in some way out of date. I could not disagree more.
I refute the Minister’s contention in one word: Ukraine. Life itself—zhizn’ sama, as a Russian would say—refutes the Minister’s contention. In the world of 2022, we see these hundreds of thousands of people—now over 500,000, the UNHCR says—abandoning their homes, trudging the motorways, crowding on to the trains, fleeing the tanks and rockets, and streaming into Poland and Hungary, Slovakia, Moldova and Romania. Are they refugees? Yes, of course they are refugees, just like the Hungarians in 1956 and the Czechs in 1968. Are they entitled to refugee convention rights? Yes, of course they are. But if the Bill, including Clause 11, is enacted or had been enacted, any of them who wanted to come to this country could be only group 2 refugees, without full convention rights, because they had not come directly from Ukraine and could have asked for asylum in Poland or Hungary. That is even though there are no direct flights from Ukraine, and even though we say Ukrainians have to have visas to come here—although we do not issue visas to asylum seekers.
The key point for the House tonight is that there is nothing in the convention or, as I understand it, subject to correction from the legal authorities round me, anywhere in international law requiring an asylum seeker to apply in the first safe country they reach. This, the rationale for Clause 11, is a Home Office invention. The convention sets only one test: not how the refugee got here, but why. What was it that drove him to come here? Was it a well-founded fear of persecution back home? That is the question. But if Clause 11 is approved, that question or test becomes redundant and irrelevant because, no matter what horrors he is fleeing from, if a refugee did not come here directly he could be only a group 2 refugee, subject to the harsher regime, detention and offshore processing set out in all the subsequent clauses that we are also going to have to look at closely, in my view. This just will not do.
My concern is with the refugees but also for the reputational damage we do to ourselves, if we go down this road, and the practical consequences for the refugee convention. Suppose our new invention caught on and other countries started following suit. Well over 20 million refugees are in countries contiguous to their homelands—just across the border—and nearly all these countries are developing countries. Suppose the convention were in future to be interpreted by all  and sundry to mean that the exiled Syrians and Iraqis must always stay just across the frontier in Lebanon or Jordan, and that the Afghans must always stay in Pakistan, but the developed world can wash its hands of these problems and leave it to the Jordans and Pakistans, because the refugees could never move on and obtain asylum elsewhere. The only places they could obtain asylum were in the Jordans and the Pakistans.
What would the consequences of that be? They would be disastrous for the first host country; there are 1.5 million people in Lebanon from Iraq and Syria, and more than that from Afghanistan in the camps around Peshawar in Pakistan. We would be saying that Pakistan and Jordan are going to be stuck with that for ever, as far as we are concerned. It would be disastrous for the refugees, too.
If this doctrine caught on—if it were the general reading of international law that first hosts had sole responsibility—anyone seeking to flee persecution would find the gates of freedom clanging shut in their face. If we leave Clause 11 in the Bill, we do not just betray our values and trash our reputation, we could kill the refugee convention, sadly, though we need it in the world of 2022 as much as ever. I propose that Clause 11 be deleted.

Lord Horam: My Lords, we had a long debate on this subject in Committee, so I shall be brief. We ought to remember throughout what the Bill was originally about. It is fundamentally about stopping, or curbing, the channel migrants. Obviously, we hope to do it in a sensible way. If we could have an agreement with the French, the Belgians or the Dutch to deal with this in a bipartisan way, that would be ideal, but none of us is very optimistic, particularly before a general election in France and so on.
We need other options: a plan B, or maybe a plan C. I agree that some of them stretch the credibility of what any Government would want to do, because the problem of the cross-channel migrants is indeed very difficult to deal with. You have to deal with them separately because, however sympathetic one may be with people in the hands of traffickers coming across the channel for whatever reason, it is a difficult way to come across. It is unsafe, they are clearly behaving illegally—it is against the law to enter this country in that way—and they are doing so in a very public way. Every night on television, you can see people coming across the channel and on to the beaches in Kent and so forth. They add to the number of people the Government have agreed to accept by proper routes—the Chinese from Hong Kong, the Afghans and, now, Ukrainians. Like the noble Lord, Lord Kerr, I hope we will have a generous scheme to allow Ukrainians who wish to come here to do so, just as I hope that Europe will have a generous scheme. I suspect and hope that they will come here only temporarily.
Coming across the channel is an open-ended and uncontrolled method and, if successful, encourages even more to come. Last year, 29,000 came; the prediction is that 60,000 will come this year. That is more money for the traffickers. The traffickers now make more money out of human beings than they do out of drugs, which will increasingly be the case. If we allow  that to carry on uncontrolled, it makes it more difficult for local authorities, which have to deal with these people—housing them, making welfare arrangements, schooling their children and dealing with their families.
They add to the problems in the most disadvantaged parts of the country. It is not the leafy areas of Hampstead where these people end up; it is in places such as Blackpool, Stoke-on-Trent, Middlesbrough and Doncaster. I was talking to a red wall MP from the north-west. Blackpool has five of the eight poorest wards in the country; it has real problems. There is fury on the streets of Blackpool at the way they are being dumped on with people such as the migrants who come across the channel. They do not understand why they have to receive them.
The levelling-up agenda, which is central to this Government, is set at nought when that situation is arising in the areas of this country which need to be levelled up. It makes a proper, organised, rational immigration policy more difficult. As my noble friend Lord Hodgson said in a previous debate, informed consent—the consent of the people—is essential for a rational, substantiated and long-term immigration policy. If we do not have a policy that people are comfortable with, in the long run, we will not sustain it.
It also makes it more difficult for the immigrants because, if they are dumped in a place such as Blackpool or some other city because there is nowhere else to go, it causes resentment among other people who find that they are pushed further down the council waiting list for a home. That is a problem.
As my noble and learned friend Lord Clarke mentioned in a debate we had in Committee, if you do not deal with this problem, you run the risk of having real right-wing parties, as fortunately we have avoided in this country; we do not have a Le Pen or a Zemmour or the German equivalent of Alternative für Deutschland and all the rest of them. We do not have such a party in this country. We have managed to keep it within the bounds of the usual national parties. If there is no attempt to deal with this problem, that is a risk you run.
The noble Lord, Lord Kerr, also said that it goes outside the refugee convention and that there is no example anywhere in the world of this happening. But in Australia, of course, they are doing precisely this. We are trying to take that as a model. In Australia, 10 years ago, exactly this kind of legislation was passed. Since then, it has had the campaign to stop the boats, and it has been highly successful. Where there were 50,000 people a year going by boat into Darwin and so forth in the north of Australia, now there is none, and there has been none for many years. Both the major parties—the Australian Labor Party and the Liberal Party of Australia—support this policy because it is successful. That is, I imagine—I do not know as I am not privy to government thoughts on this matter—a possibly alternative if negotiations with the French is our main purpose and this is enacted.
There are examples in the world of highly successful policies which are presumably inside the refugee convention—I am not aware of Australia being sanctioned  or penalised by the UNHCR. The facts are that this is an alternative which the Government are looking at. It is a difficult alternative—I agree that it is well beyond what Governments would normally look at—but, in these circumstances, the Government here are laying the legal framework for the possibility of enacting this. To take it out of the Bill would be hugely destructive and deeply irresponsible.

Bishop of Durham: My Lords, if the names had not been filled on Amendment 28 then I would have added my name to it. I remind the House of my interests as set out in the register, both in RAMP and Reset.
In Committee I laid out the understanding of the two groupings proposed and argued that almost no one will actually qualify as being in group 1. I had no repudiation offered to that argument. As the noble Lord, Lord Kerr, said, Ukraine is currently illustrating the problem precisely. I was also concerned in the response to the debate in Committee by some of the language of discretion within the two groupings.
We need a simpler, more efficient asylum system, and I continue to be convinced that what is proposed will provide a more complex, slower process. Fundamentally, I am with all those who oppose the two-group system, as it creates a fundamental injustice for fair treatment of all refugees, regardless of how they arrive.
Today, a letter signed by over 1,000 leaders from all the major faith communities of this country was delivered to the Prime Minister. I quote from that letter:
“Dear Prime Minister, As leaders within faith communities across the UK, we are horrified and appalled about the potential repercussions of the Nationality and Borders Bill. We urge you to reconsider the proposals even at this late stage.”
It goes on later to say:
“Currently, Clause 11 sets out the differential treatment of refugees. This separation of refugees into ‘Group 1’ or ‘Group 2’ undermines the longstanding and widely understood expectation that a person’s asylum application is decided on the individual merits of their case and whether they would face serious threats to their life or freedom if they were not to be granted refugee status. The artificial manufacture of a two-tier system creates two different classes of refugees. This would not be based on needs or merits but would depend on the ability of a person to arrive in the UK via a ‘regular’ route of travel. This is a clear breach of the principles of the Refugee Convention, and we have seen no credible evidence that it will stop irregular migration across the English Channel; it is therefore, policy made without a basis in evidence or morality. Criminalizing and punishing vulnerable asylum seekers who have little choice but to arrive in the UK through ‘irregular routes’, when the majority are subsequently able to prove that they have a legitimate basis for their asylum claim, is a disgraceful and dishonourable policy, and should be abandoned.”
The letter says some more about other clauses, but concludes:
“What we need now, is political leadership which acknowledges and allays the concerns of the public while promoting the importance of compassion, human life and dignity. We remain willing to assist in any way we can to this end, and ask that key representatives on this issue from the government would agree to meet with faith representatives to explore what both we, and the government, can do to help address some of the concerns we have raised.”
Just to be clear, Members on these benches who are engaging in the debates during the progress of the Bill made a conscious decision not to sign that letter  because of our privilege of being able to speak here. If we were not here, we would have all signed it. It has over 1000 signatures of those from all major faiths. I doubt the Minister is going to agree to withdraw all of Clause 11, but I sincerely hope that she will ask the Prime Minister to respond positively to the letter and recognise that faith leaders representing faith communities across the land should be heeded and not ignored.
If I may add that, on the Australia example, it is not as simple as the noble Lord, Lord Horam, has suggested. There are many in Australia who will tell you that the system is not working and has not stopped the problems; indeed, I think Novak Djokovic might tell you of his own personal experience of how it is not working because of the people he met in the hotel that he was held in, some of whom have been held for a very long time. There is another simple reason it does not work: geography. The United Kingdom is in a very different geographic setting from Australia. I long that we remove Clause 11.

Lord Dubs: My Lords, I very much agree with the right reverend Prelate, and I am totally in support of the noble Lord, Lord Kerr, and his amendment.
I agree with the right reverend Prelate: all the evidence we have from Australia is that it is not working. I have talked to people in Australia who say that we should not go down this path because it is not sensible and it does not work.
I shall be extremely brief. The idea that, at this stage, we start renegotiating the 1951 Geneva convention—presumably on the basis of clauses such as Clause 11—is a frightening prospect. This is no time to be tearing up one of the most fundamental human rights documents that we have, which protects vulnerable, innocent victims of war and persecution. This is no time to be saying that we will change that. If the Government are not proposing to do it that way, why have this clause?
It seems to me that there are too many examples—whether it is Afghans who have got to neighbouring countries but cannot get any further, or Ukrainians who have got to neighbouring countries—that give the lie to the idea that, somehow, you can get here by the sort of route that the Home Office approves of. It is complete nonsense. It is not workable and it diminishes this country in the eyes of the world.

Baroness Jones of Moulsecoomb: I was so annoyed by what the noble Lord, Lord Horam, was saying, because part of it was absolute nonsense. Australia is actually riven with debate on the whole system of asylum that it offers to refugees, and the offshoring is extremely contentious, not to mention inhumane. Plus, of course, what he has described as all the problems that we have with refugees are actually failures of the Government. Why does he not ask his Government to set up safe systems for refugees to arrive in Britain? That is the real problem: we do not have them.
I shall go back to what I want to say: compliance with the refugee convention seems absolutely part of what we should be doing as an honourable country. We should not think in terms of interpreting it in our own way. Just as countries all over Europe are throwing  open their doors to Ukrainian refugees and refugees from other countries who have found themselves in Ukraine, we are putting up walls and nailing doors shut, rather than being honourable about the situation. Imagine people from Ukraine being subject to the two-tier refugee system, as the so-called legitimate ways of escaping Putin’s violent invasion are cut off and Ukrainian refugees have to use so-called illegitimate ways of getting to the UK. The Bill harms those refugees.
If people do get here from Ukraine or other countries, are they to be left homeless and begging on the streets because there is no recourse to public funds and they are banned from work? These people are professionals: they are teachers, nurses, skilled engineers and tradespeople with lifetimes of hard work behind them. They are all banned from contributing in this country, and it makes absolutely no economic or social sense. When Ukrainians claim asylum, do we lock up the women and children in detention centres if they are struggling to find the right paperwork?
If this Government were brave, they would go out and celebrate the asylum system and create one that was fit for purpose and champion the UK as a place of refuge. But this Government are not brave: they pander to the far right and use national rhetoric to divide and rule. At this point, the Government ought to reflect on the whole Bill and realise it is not appropriate for the circumstances we are in. It is cruel, it is inhumane, and quite honestly, the invasion of Ukraine should be a turning point for us. The Government should abandon the Bill and perhaps start thinking about a “refugees are welcome” Bill.

Baroness Stowell of Beeston: My Lords, may I just ask my noble friend a question, based on listening to this debate and looking at Clause 11 as it stands? Subsections (5) and (6) say that the Secretary of State “may” treat group 1 and 2 refugees differently. My interpretation is that this clause is introducing an element of discretion to the Home Secretary to deal with a situation in a way that allows some difference of treatment, should she see fit—not a requirement that she must do so.
On the point the noble Baroness, Lady Jones, just made in response to my noble friend Lord Horam, I say that the Government are not seeking not to comply with the refugee convention, but seeking to allow for some flexibility and discretion to deal with some of the changing situations in this context, which are very different now from when the convention was introduced 50 or so years ago.

Lord Etherton: My Lords, I entirely endorse and support what the noble Lord, Lord Kerr of Kinlochard, has said. I do not want to develop this as a lawyer, because the issues can be very well understood by anybody with any degree of common sense. The starting point is that the English courts have reached a view about the meaning of “directly” in the convention, and the contrary view that has been rejected by the courts is the one found in Clause 36; and Clause 11 is to be read with Clause 36. I take issue with the proposition that the introduction of “may” in some way or other alleviates this problem. It does not. The Government have adopted a view about the meaning of the convention, and the meaning of “directly” that  is critical to the division between groups 1 and 2, which has been rejected. Perhaps more importantly even than the fact that it was rejected expressly by the English courts is that it has not been adopted by the UNCHR either, which has followed the English jurisdiction since the expert round-table conference in Geneva in November 2001, set up specifically to discuss and agree Article 31.
In Committee, on Report today and in a letter sent at about 5 pm today, the noble Lord, Lord Wolfson, said that in effect—and this is a critical part of the Government’s presentation of this issue—it is up to each member state to decide what is meant by Article 31. You do not need to be a lawyer to know that this is a very misleading statement. Treaties must be interpreted in accordance with the Vienna Convention on the Law of Treaties. They must be interpreted in good faith, in accordance with their ordinary meaning, in their context and in the light of their object and purpose. This is why Lord Bingham said in the Appellate Committee of the House of Lords that
“the Refugee Convention must be given a purposive construction consistent with its humanitarian aims”.
What is the object of interpretation? The search is for a construction and interpretation which was intended by the makers of the treaty, which is why an investigation always starts with the travaux préparatoires. That is true not just in this country but in every country signed up to this treaty. In that exercise, particular weight obviously must be given to the view of the UNHCR, because that is the supervisory body which has been appointed to oversee the implementation of the refugee convention. Furthermore, the significance of the view of the UNHCR on this issue is reinforced by the requirement in Article 35 of the convention, which requires member states to co-operate with the UNHCR. That obviously means co-operating in relation to the implementation in accordance with a particular approach to the meaning of “directly”.
Furthermore, the adjudication of disputes between member states about the convention by the International Court of Justice, which is provided for in Article 38 of the convention, presupposes a common set of values and obligations. You cannot have a court determining something if there is no agreement by anyone, or agreement by only a few people, because they are all following their own interpretations at any one moment in time, according to the government policies of the individual states. All this is a matter of common sense and pretty obvious. People have referred to Ukraine. This is the paradigm example of why this whole approach of the Government’s will not work in relation to “directly”. We are expecting the countries immediately surrounding Ukraine, particularly Poland, to absorb the 500,000-odd people, whereas this country, we are told, will accept an amount of just hundreds who have a close connection with a relative here. Is that consistent with the humanitarian aims of the convention? You would be a very strange person to say that it was. This is a plain breach of the convention—as plain as could be—which must be excluded from the Bill.

Lord Russell of Liverpool: My Lords, I was not intending to speak in this debate but, rather like the noble Baroness, Lady Jones, I was prompted to by  some of the interventions from behind the Front Bench, so as a non-politician I will speak briefly about the political context used to justify some of this rather egregious legislation.
I have the privilege of being the only non-political member of the UK delegation to the Parliamentary Assembly of the Council of Europe. The Council of Europe is nothing to do with the EU. It is the foremost human rights organisation in our continent, with 47 countries until Friday, when we ejected Russia, so we are now down to 46.
Although I am independent, and I am not a politician, to function there you have to be part of a political grouping, so I sit with what happens to be the political grouping of the Government of the United Kingdom of today: the Conservative Party. The political grouping it is in is called the European Conservatives Group and Democratic Alliance. The group that we—all the Conservative MPs and Peers and I—sit in when we are in Strasbourg contains some of the political parties that the noble Lord, Lord Horam, referred to by name, saying we did not want to go that way.
In Strasbourg, the Conservative Party sits with the AfD, the laughingly named Sweden Democrats, who are effectively neo-fascists, and, from my wife’s native Italy, the Fratelli d’Italia, who are the direct descents of Mussolini, and the Lega Nord, led by the wonderful Mr Salvini, usually seen on the beach. These are not good bedfellows. Some of the comments that I hear from politicians, particularly from another place but also from some members of the Cabinet, are remarkably similar to some of the views I hear in the meeting room in Strasbourg when some of these individuals are speaking—views which most of us would find pretty horrendous but one steels oneself to listen to because, I suspect, they are probably reflecting pretty accurately the views of the people who voted them into office.
I will briefly refer to being in office. My great-grandfather, who was Prime Minister three times, said, “You are not elected into power; you are elected into office. You are elected into office as much to represent those who didn’t vote for you, or who didn’t vote at all, as those who did vote for you”. What we are hearing is a sort of “I’m all right, Jack” view of the world.
My wife’s native country of Italy is a contiguous country, in the way referred to by my noble friend Lord Kerr. Italy’s citizens did not want or vote for a large migration from north Africa to come. They may not like it, but they have accepted it; they really do not have any choice. Part of the reason that they are having a lot of problems and they are quite cross with countries such as ours is that we have completely and utterly refused, as have most other EU countries, to share the burden equally. The noble Lord, Lord Coaker, and I have been to Jordan, another contiguous country. We went to Zaatari, the largest refugee camp for Syrians, in northern Jordan, where some 80,000 men, women and many children are huddled in reasonable conditions, thanks to the UNHCR. In Lebanon and Turkey no citizen voted for this, but that is what they  have ended up with. We are a very long way from being contiguous but we are behaving in a way which, frankly, I find shameful.
The great-grandfather I referred to earlier was involved in raising the equivalent of about £34 million in 1939 after the Kristallnacht in Germany, which enabled a great many Kindertransport children to come to this country—that is what the money was used for. He would be ashamed by what is going on in this Chamber tonight.

Lord Green of Deddington: My Lords, I will just say a word in support of what the noble Lord, Lord Horam, said, about public opinion. We have to be careful here. A substantial slice of public opinion is concerned about the scale and nature of the inflow of people claiming to be refugees, and the shambles in the channel at the moment is no help. We need to bear that in mind in all our discussions. I do not think that the policy itself will work, and I do not think that the division into this or the other class of refugee will help. But let us not, for goodness’ sake, get carried away by our own righteousness and forget that there are a lot of people in this country who are not in situations as comfortable as ours who look to us to make sure that, in so far as there is an input of refugees, they are genuine.

Lord Brown of Eaton-under-Heywood: My Lords, I would not want that to be quite the last word. The speech made by my noble friend Lord Kerr was not merely powerful, it was compelling and irrefutable. As a matter of law, I have spoken on this before in Committee. I am not going to repeat all that, but do we really believe that the inhabitants of Blackpool, Doncaster or the deprived towns spoken of by the noble Lord, Lord Horam, and reflected in the contribution of my noble friend Lord Green, are so much less understanding, less sympathetic or less kind than the Poles, who are welcoming these vast hordes of people? We are not going to be asked to take that sort of number.
It is a dismaying thought that we really believe that our fellow countrymen, at this crisis in world events, would turn their backs, which is, in effect, what is being suggested. Are we really going to condemn, as Clause 11 is designed to do, rafts of asylum seekers—genuine refugees—to the loneliness, isolation, desperation, destitution and failure to be able to bring their families that it is suggested we now must to stop people crossing the channel, or to appease those in our deprived areas who do not want vast numbers of more refugees? I fervently suggest not. I would have hoped that, in this ghastly moment of history, the Minister would say, “This is not a moment to promote a Bill like this. We must withdraw it and think again”. No doubt, that is above his pay grade: indeed, considering that he is unpaid, that is not a very high bar. However, I really urge those responsible for this grotesque piece of legislation not to try to persist in it at this juncture.

Lord Paddick: My Lords, if those seeking asylum in the UK are genuine seekers of sanctuary from war and persecution, they are entitled to all the rights afforded to refugees under the refugee convention. Even if they are eventually found not to be genuine refugees, they are entitled to have their claim considered  and their welfare safeguarded while it is being considered. A number of noble Lords have talked about public opinion. In answer to the noble Lord, Lord Horam, who appears to think that this is all about people crossing the channel, Clause 11 would make Ukrainian refugees who made it to Poland and then flew to the UK second-class refugees. If—I say “if”; I am not saying that this is the case—there is concern in public opinion, it is a concern about immigration, not a concern about refugees.
This is a very generous nation. If you speak to people in the towns and cities that the noble Lord, Lord Horam, has mentioned, the vast majority will say, “Of course we want to help those people fleeing the war in Ukraine”. They are concerned about being overwhelmed by immigrants, but only 6% of immigration in recent years has been by asylum seekers. That is why Clause 11 is not right and not necessary. Once asylum seekers have presented themselves and their claim in the UK, they are entitled to have their claim considered without fear or favour, regardless of where they came from and how they got here. They should not be treated differently on that basis. We should take Clause 11 out of the Bill and, when the noble Lord, Lord Kerr, tests the opinion of the House, we will be voting with him.

Lord Green of Deddington: Before the noble Lord sits down—

Lord Sharpe of Epsom: With the greatest respect to the noble Lord, under the rules of Report stage, one is allowed to speak only once during the debate.

Lord Rosser: My Lords, as has been said, Clause 11 is about differential treatment of recognised refugees. There is the distinction that the noble Lord, Lord Paddick, referred to between refugees and immigration generally. We believe that Clause 11 contravenes the 1951 refugee convention: it sets a dangerous precedent by creating a two-tier system—group 1 refugees and group 2 refugees—and, frankly, it is also inhumane.
Under the Bill, the Home Secretary will be given sweeping powers to decide asylum cases based on how someone arrives in this country and their mode of transport, not on the strength of their claim, contrary to the 1951 refugee convention, of which Britain was a founding member. The different ways those two groups could be treated is not limited in any way by the Bill, although Clause 11 provides examples: those who travel via a third country, who do not have documents or who did not claim asylum immediately will routinely be designated as group 2 refugees.
The clause goes on to set out how the length of limited leave, access to indefinite leave, family reunion—that is, whether family members, mainly women and children, are entitled to join them—and access to public funds are likely to become areas for discrimination against group 2 refugees. A state of complete uncertainty over their future will be deliberately created for these group 2 refugees.
The refugee convention, which was enshrined in UK law in 1954, I think, contains a single unitary definition of a refugee. It defines a refugee solely according to their need for international protection because of feared persecution on the grounds of their race, religion, nationality, membership of a particular social group or political opinion. Anyone who meets that definition and is not excluded is a refugee and entitled to the protection of the refugee convention.
The Commons Committee considering the Bill heard in evidence from the representative of the United Nations High Commissioner for Refugees to the UK that Clause 11 and the Bill were inconsistent with the UN convention and international law. Commenting on the Bill, the UNHCR also said:
“Requiring refugees to claim asylum in the first safe country they reach would undermine the global, humanitarian, and cooperative principles on which the refugee system is founded.”
This is a matter not just of law but of fairness and humanity. Most refugees—I say again that we are talking about refugees—have absolutely no choice about how they travel. Is it really the Government’s intention and desire to penalise refugees who might, as a matter of urgency, have had to find an irregular route out of Afghanistan, for example, or, perhaps more relevantly at this precise moment, Ukraine? Of the first 5,000 people who came in 2020 by boat, well over 90% were deemed by the Home Office to be eligible to apply for asylum. They were genuine asylum seekers, but they will become illegal if the Bill is enacted. Clause 11 envisages group 2 status for them, and will stigmatise them as unworthy and unwelcome, maintain them in a precarious status for years, deny them access to public funds unless they are destitute, and restrict their access to family reunion. I say again: we are talking about recognised refugees. Yet the Home Office identifies secure immigration status as a key outcome indicator for stability, which is
“necessary for sustainable engagement with employment or education and other services.”
Clause 11 is at least in part about saving the standing of a Home Secretary and Government who previously promised their supporters that they would stop people crossing the channel irregularly only to see the numbers subsequently increase. As a result, Clause 11 is largely silent on addressing the continuing and apparently expanding horrendous activities of the people smugglers, and instead concentrates on hitting the victims, nearly all of whom are recognised as genuine asylum seekers.
We now have a clause and a Bill under which individuals who have been recognised as refugees will be given inferior treatment based on the way they came to the UK. That is contrary to the UK’s obligations under the refugee convention, and inconsistent with the right to a private and family life and the prohibition against discrimination under the ECHR. Clause 11, with its two-tier system, should be removed from the Bill.

Baroness Williams of Trafford: My Lords, I thank all noble Lords who spoke to these amendments. At the outset, I will dispel one widespread misapprehension about this clause. Under Clause 11, those who meet the terms of the refugee convention will be granted refugee status. There is no question of this clause making it harder to be a refugee or otherwise enabling the Government to refuse refugee protection  to those who need it. That is simply not true. What the clause does is enable the Secretary of State to distinguish between refugees based on whether they came directly and claimed without delay, but anyone considered under this policy will be a refugee.
The status of Clause 11, as a deterrent, is closely tied to secondary movements and the first safe country principle. In Committee it was claimed that, for a number of reasons, the UK must allow people to choose to come here from other safe countries to claim asylum, if they wish. This is not sustainable. It has also been posited that requiring refugees to claim asylum in the first safe country would undermine the global humanitarian and co-operative principles on which the refugee system is founded. I categorically reject this. In fact, it would strengthen them, because more countries would have the capacity for resettlement via safe and legal routes. Quite simply, if spontaneous intake falls, our ability to bring over refugees from regions of origin increases.
I will also reiterate at this stage that the first safe country principle is itself internationally recognised. Not only does it underpin the Common European Asylum System but there is a long-standing safe third country agreement between the USA and Canada which means that, barring certain exceptions, anyone arriving at the Canadian border is ineligible to make a claim. As my noble friend Lord Horam might have mentioned, Norwegian legislation similarly sets out that an application for asylum may be refused where a person has travelled to Norway after having stayed in a place where they did not face persecution. Australia—much mentioned this evening—also has those statutory powers to designate countries as safe, with the effect that anyone from that place will be barred from claiming asylum. In Australia, they have almost entirely stopped small boat crossings.
The evidence on which such policies are based is not only the fact that certain safe countries are clearly more popular than others as a destination for asylum seekers but comes from academic analysis. To be clear, I am going to talk about the reasons for secondary movements from one safe country to another, not why people leave their countries of origin in the first place. The two are clearly not the same. Secondary movements were assessed in a comprehensive analysis by Takle and Seeberg in 2015. An important part of their conclusion was that “future possibilities” play a crucial role in explaining secondary movements:
“For the individual migrant, it makes sense to ask: ‘If I make it through the waiting period and if I gain protection in this country—will I have the means to survive here? Will I be able to work, to find adequate housing, to fulfil my family obligations, to complete my education, to find friends, to belong: will I have a life? If not, where might I be better able to build myself a new life?’”
These are entirely sensible and understandable things to ask oneself. However, every last one of those things can be found in France and other safe countries without the need for a dangerous journey to the UK.
Another study concerning secondary movements of Eritreans between Italy and Norway by Brekke and Brochmann in 2014 noted the following:
“National differences in the quality of the reception system, in welfare policies, and in labour market opportunities motivated the secondary migration of asylum seekers and refugees in Italy.”
They also observed:
“The UK, Norway, and Sweden stood out as attractive destinations for the Eritreans. One informant stated: ‘There you get everything if you are accepted: housing, pocket money, education and work.’”
Again, this is totally understandable. The notion, as I have heard repeated in this House, that people are motivated by singular and discrete “pull factors” unrelated to economic considerations is therefore reductive and misleading. In fact, commonly cited pulls, such as language, family, and diaspora links, are not only intrinsically valuable but instrumentally valuable to improving future possibilities, including work and education. I repeat: France offers perfectly good future possibilities. There is no need to take a dangerous journey across the channel to improve future possibilities. We must do everything within our powers to stop this, including putting Clause 11 into law.
Briefly, the “without delay” element of Clause 11 is intended simply to deter other unwanted behaviours that we see in the asylum system. This includes making late claims without reasonable excuse, often in response to a negative immigration decision to delay removal. This is intended primarily to improve operational efficiency, enabling us to focus resources on those most in need and to carry out quick and cost-effective returns of those who have no right to be in the UK.
Distinguishing between different refugees forms part of the refugee convention itself. For example, the entire structure of entitlement under the refugee convention rests on different levels of attachment, with physical presence and lawful presence distinguished for the purposes of various entitlements. Article 31 does not contain a blanket prohibition on the imposition of penalties on refugees who enter or are present illegally. Article 31 prohibits penalties only in respect of refugees who either are coming directly from a territory where their life or freedom was threatened or present themselves without delay to the authorities, and who show good cause for their illegal entry or presence.
We think that differentiation is not a penalty, taking into account that the convention does not explicitly define “penalty” and the fact that there is no unanimity on the definition of penalty. In any event, the convention does not prohibit differentiation and the clear implication of Article 31 is that states are entitled to impose penalties on refugees who enter their territory illegally when the three conditions are not satisfied. I have already spoken at length about the broad and flexible nature of the powers under Clause 11, which I have consistently argued enable the Secretary of State to exercise sensitive and compassionate discretion in each and every case.
The right reverend Prelate the Bishop of Durham stated that nobody would be in group 1. That is not true. Those who could not be reasonably expected to claim in another safe country may well be in group 1 if, for example, they were trafficked. This goes to my noble friend Lady Stowell’s point: despite a number of misleading media and NGO reports, there is a vanishingly low risk that anyone who has, for example, suffered sexual or gender-based violence, is coming to terms with their sexuality or is the victim of trafficking will face differentiated entitlements.
Our definitions of concepts such as “come directly” and “without delay” are drafted in a manner that is responsive to those who may have legitimate reasons for being unable to comply with the standards set out and, as per my noble friend’s amendments, as drafted already enable us to use reasonable discretion when considering imposition of differentiated entitlements—again, a point that my noble friend Lady Stowell made. Indeed, there is no obligation to impose any particular condition on group 2 refugees. There is ample room for people to show that they could not reasonably have been expected to claim asylum in another safe country or that they could not claim as soon as reasonably practicable.
Group 2 refugees will still be protected and receive relevant entitlements in accordance with the refugee convention so that the object and purpose of the convention are upheld. Accordingly, Clause 11 is considered a good faith, compatible interpretation of the refugee convention.
My noble friend Lady McIntosh of Pickering lamented the diminution of safe and legal routes. We have not diminished such routes; I have set them out and distributed them to noble Lords. Some of those routes are not capped—for example, the BNO and refugee family reunion routes. On that note, my right honourable friend the Home Secretary stated today the ability of Ukrainians to come fee-free via the family reunion route. Potentially 100,000 Ukrainian refugees will come here, and we will be very glad to see them. On the point about visa waivers, I think it is very important that we continue to have the simple security checks that my right honourable friend talks about, because there is evidence that people who would do us harm are masquerading as Ukrainian refugees.
Just to finish, I have a point on Jordan, which I think the noble Lord, Lord Russell of Liverpool, mentioned. The standards of housing, recourse to public funds, education and healthcare in Jordan are not comparable with the UK. I shall say no more about that, but it is a difficult one to compare the UK with Jordan in terms of the infrastructure and facilities for Jordanians.
I think that every concern from noble Lords thus far has been met with a very clear and reassuring answer. This clause strikes a robust balance between firmness and fairness, with a firm policy response to the evidential picture about secondary movements and upholding the first safe country principle, but fair in its acknowledgement that we absolutely must be sensitive to the vulnerabilities of certain asylum seekers. I hope that, on that note, noble Lords do not press their amendments.

Baroness McIntosh of Pickering: My Lords, obviously I am disappointed that my Amendments 25, 26 and 27 have not found favour with the Minister or the House. My noble and very good friend Lord Horam said that he hoped that France and Belgium would take some of the asylum seekers and refugees back. That would indeed have been the case if we had managed to negotiate that we stayed within the Dublin III convention—so that is another source of disappointment.
My right honourable friend the Prime Minister stated yesterday in a very holy place that the UK would be very generous with Ukrainian refugees, but I  regret to say that I do not hear how that is going to be applied in what I heard from the Front Bench this evening. However, I shall not press my amendments, because I believe that Amendment 28 carries more favour, so I beg leave to withdraw.
Amendment 25 withdrawn.
Amendments 26 and 27 not moved.

Amendment 28

Lord Kerr of Kinlochard: Moved by Lord Kerr of Kinlochard
28: Leave out Clause 11

Lord Kerr of Kinlochard: My Lords, there are two ways in which to break a treaty, and I think that, looking back on it, I rather preferred the Brandon Lewis way—the straightforward, “Yes, we’re breaking a treaty, in a specific and limited way.” This rather weaselly approach, whereby the Government say, “Oh well, we’re perfectly entitled to interpret the treaty as we choose, and no, as a matter of fact we’re not in breach of it”, seems to me unconvincing and undesirable, and rather bad for our international reputation and for refugees.
I have not heard an answer to the key point, which is that, if I were coming from Ukraine, I could not be a group 1 refugee because I cannot come directly. The clause says that the requirement of being a group 1 refugee is that you have come to the United Kingdom directly from the country or territory where your life or freedom were threatened. So nobody from Ukraine can be entitled to full refugee convention rights in this country, if this becomes the law. I do not think that is right, so I think I have to test the opinion of the House.
Ayes 204, Noes 126.

Amendment 28 agreed.
Consideration on Report adjourned until not before 9.26 pm.

Higher Education Reform
 - Statement

The following Statement was made in the House of Commons on Thursday 24 February.
“With permission, Mr Deputy Speaker, I would like to make a Statement about how the Government are safeguarding the future of our universities, putting them on a sustainable path for taxpayers and students. Our universities—indeed, our entire higher education system—are some of the most innovative, important institutions in our country. Four of our great institutions are ranked in the global top 10 list. They are a true powerhouse of innovation and research—they even played a leading role in the development of the Covid vaccine—and they will play a significant role in the prosperity of our country for years to come.
We recognise that education at all levels plays a role in learners’ personal fulfilment and pursuit of knowledge, whether that is in the humanities or in science and engineering as in my case, and in higher or further education. As we move past the pandemic and start a new chapter in our country’s history, now is the time to ensure that our universities are on a solid footing and sustainable ground for generations to come. To do so, I am announcing the launch of two consultations, which, taken together, outline our proposals for the higher education sector and secure a better deal for the student and the taxpayer. The consultations will deliver solutions to the problems that Sir Philip Augar’s independent panel examined in such depth and so thoroughly. The higher education policy statement and reform consultation, and the lifelong loan entitlement consultation, address the pivotal recommendations made by the panel, to whom I am indebted for their excellent work.
As Members across the House know, one of the Augar panel’s core recommendations was the provision of a lifelong learning loan allowance. That is why today I am launching a consultation on the lifelong loan entitlement, to seek views from the sector and the public on the shape and scope of this important policy. Under this new and flexible skills system, people will be provided with a loan entitlement equivalent to four years of post-18 education to use over their lifetime, whether in modules or as a whole. They will be able to train, retrain and upskill as needed in response to changing skills needs, sectors and employment patterns. It will be a powerful and innovative vehicle in levelling up, providing real opportunities for everyone and giving businesses the skilled workforce they need to thrive and grow.
In light of the new entitlement, it is now more important than ever that our higher education funding system is fair for both the student and the taxpayer. The bottom line is this: if we fail to act, we can expect just 23% of students who enter full-time higher education next year to repay the full cost of their loan. That is a challenge that our reforms will address. We are maintaining the repayment threshold at its current level for current plan 2 graduates until 2025—those who took out loans after 2012. We are also reducing the repayment threshold to £25,000 and extending the loan repayment period from 30 years to 40 years for students starting  their studies in autumn 2023. That will make the system fairer for students and taxpayers. Graduates will see the benefit of their degree all their earning life, so it is only right and fair that they continue to contribute. We expect that as a result of our changes the proportion of students paying back their loan in full will increase to just over half. Our significant regulatory reform work, which we are taking forward with the Office for Students, alongside the measures we are consulting on, will drive up student outcomes and help students to access high-value employment that benefits them and the economy.
Without those interventions, the student loan book will balloon to nearly half a trillion pounds—half a trillion pounds—by 2043. I have thought very carefully about fairness for students when pulling together this balanced package of reforms. I am pleased to say that we have delivered on our manifesto commitment to address high interest rates, by reducing interest rates for students starting next year to RPI plus 0%, ensuring that graduates, under these terms, will not have to repay more than they have borrowed in real terms. New students starting in the academic year September 2023 are expected to borrow an average of £39,300. I have seen some spurious headlines today. In today’s prices, they will borrow £39,300.
We forecast that the average graduate will repay £25,300 in today’s prices over the course of their loan. How does that compare with the current system? Under the current system, £19,500 is what they repay. I hope that offers colleagues clarity, rather than claptrap headlines. I want to be clear: no student will repay more than they took out in today’s prices. Let me repeat that: no student will repay more than they took out in today’s prices. We are also continuing to freeze tuition fees for all students for a further two years. The combination of those measures, the reduction in interest rates and the two-year freeze, means a student entering a three-year course next autumn could see their debt reduced by up to £6,500 at the point at which they become eligible to repay. When the total seven-year freeze is taken into account, that totals up to £11,500 less debt at the point at which they become eligible to repay.
Alongside that, we are investing almost £900 million in our fantastic higher education system over the next three years. That includes the largest increase in government funding for the higher education sector to support students and teaching in over a decade. An additional £750 million will be invested in high quality teaching and facilities, including in science and engineering, in subjects that support the NHS, and in degree apprenticeships. There are those who say, “Why aren’t you making higher education free?” To those people I would say, “Look at our counterparts in Scotland.” Over the last five years, universities in England have been able to cover their teaching costs more successfully than their Scottish peers, because of our more sustainable system of tuition fees and grants.
As part of our plans to reform the higher education sector, we are building on our work with the Office for Students to set minimum expectations around completion rates and progression to graduate jobs or further study. We are seeking views on policies that will help to ensure that every student has confidence that they  are on a high-quality course that leads to good outcomes, a good job and ensuring that the growth in our university sector is focused on high-quality provision wherever they are in the country. We are consulting on controlling student numbers and introducing a minimum eligibility requirement to access student finance. I want to make sure that every student who goes to university will be able to reap its true benefits and not feel that they have been mis-sold and saddled with debt after completing their course.
It is really important that we have the conversation about the need for minimum eligibility requirements to ensure students are sufficiently prepared to benefit from higher education before they enter university. For example, that could be a return to the old requirement of two E grades at A-level, or a pass in GCSE English and maths. Of course, there will have to be exemptions for some groups, including mature students and part-time learners, on which we are also consulting. Young people should not be pushed into university if they are not ready. After our proposed exemptions that we are consulting on are applied, less than 1% of total entrants would be affected by a minimum eligibility requirement set at grade 4 at GCSE, but we will listen and be open-minded.
Student number controls would limit the uncontrolled growth of provision that does not lead to good outcomes or good jobs. Incentivising the expansion of provision with the best outcomes for students, society and the economy has to be our goal. The proposals are about advancing real social mobility. That means shifting from a focus on simply getting students in the door counting the inputs, to ensuring they complete their course and secure a good outcome after they graduate—being obsessed about outputs and outcomes.
As with everything my department does, my officials and I have also considered carefully how we can support disadvantaged students with this package of reforms. Access to higher education must be dependent on attainment and ability to succeed, and not inhibited by a student’s background. Our proposals to reduce fees for foundation years would make them more affordable for students who need a second chance to enter higher education. Our flagship national scholarship programme, in which we will be investing up to £75 million, will help to support high-achieving young people from disadvantaged backgrounds to achieve their dream, regardless of course or university.
Finally, to complement the lifelong loan entitlement, we are rolling out new approved higher technical qualifications. Those will be high-quality, job-facing alternatives to degrees, approved to deliver the skills that employers need. From academic year 2023-24, we will extend student finance access to those qualifications and allow learners studying them part-time to access maintenance loans, as they can with degrees. That will address financial barriers for learners and move towards the flexibility that we envisage through the lifelong loan entitlement. Those two policies will be vital to bringing further and higher education much closer together, just as the independent panel recommended.
I believe that these reforms are fit for a dynamic and growing economy. The reality is that, apart from buying somewhere to live, taking on a student loan can be one of the biggest financial commitments that any young  person can make. I am confident that they will set the sector up for success in the years to come and keep our student finance system fair and sustainable for students and the taxpayer. I have been continually impressed by the resilience demonstrated by students throughout the adversity of this pandemic. We owe it to this generation, and generations to come, to ensure that education remains open to anyone with the ability and desire to benefit from it. I commend this Statement to the House.”

Baroness Sherlock: My Lords, in May 2019, the then Prime Minister, Theresa May, launched the report of the Augar review. That was a long time ago, and it feels like a very long time ago. I wish I could say that the time has been well used, but let us have a look at what has been put out in this report.
First, there are changes to student loans. From the academic year 2023-24, the interest rate on loans will be changed to RPI for everybody, which is interesting, because Ministers keep telling me that RPI is no longer an official statistic because of concerns over its methodology. I can only assume that, somehow, it is not good enough when you are paying money out to benefit recipients but it is fine when you are taking money away from students. If only the noble Lord, Lord Forsyth, were here, I think he would have something to say about that.
Secondly, it reduces the repayment threshold to £25,000 and increases the repayment term to 40 years—much of a working life. For those on the current loan scheme, the repayment threshold will stay at the current level until 2024-25, which, given the current inflation rate, is quite a bit of fiscal drag. The effect of these measures together is highly regressive, hitting the lowest earners the hardest.
Paul Johnson of the IFS said this about it:
“looked at from the point of view of progressivity, redistribution, winners and losers, the reforms look truly horrible. Low-to-middle-earning graduates could be made about £20,000 worse off over their lifetime by the changes; the highest earners could benefit by £25,000.”
The equality analysis published alongside the consultation document said that
“among new borrowers, the largest proportional increases in lifetime repayments will be from lower earners … by 174% for those in the 4th decile”.
Meanwhile,
“the highest lifetime earners among new borrowers will experience large decreases in lifetime repayments (down 26%)”.
Why have the Government chosen to reform the loan system in a way which so profoundly benefits higher earners and hits those on lower incomes?
If noble Lords are wondering what the attraction of this particular approach is, it is perhaps worth mentioning that, thanks to a quirk of government accounting rules, these changes make the public finances look quite a bit better, but only in the short term. The IFS says that it will take about £1 billion off the cost of the student loan scheme, but:
“We expect the budget deficit to fall by about £5 billion in 2023 as a result of the changes, with subsequent hits to the deficit further down the road as new loans accumulate less interest.”
It finishes, drily:
“This will please the Treasury.”
Indeed it will.
However, this will not please many people because the pain does not fall equally in other ways. The equality analysis says that women, disabled people, some ethnic minorities and those from certain regions are likely to face increased lifetime repayments. Men gain and women lose. On average, men will repay around £5,500 less and women will pay £6,600 more. The IFS notes a remarkable comment:
“the taxpayer cost of funding men’s student loans will actually increase as a result of the reform … the saving on women’s student loans alone is greater than the total at £1.6 billion.”
Women students are not only paying for the reduced cost to the Exchequer; they are paying for the men’s changes as well. The Minister will doubtless say that this discrimination is not intentional, it is just that women earn less. But the Government know that women earn less across their lifetime. So, having known that, can the Minister tell the House what consideration was given to the differential impact of these proposals before deciding on them?
The Government are also consulting on other measures, including reintroducing government controls over student numbers. But not just by a global figure; they are consulting on whether to control them by sector, provider, subject, level or even by mode of study. Are the Government planning to do all of them? Might they do them all? Could the Government conceive of a world in which the Secretary of State could decide that physics is in but history is out? Could he close down the music department at Lindchester University completely? Could he decree that all computing is going to be done in FE from now on? This may not be their plan, but there is no way to tell from the documents published what their plan is. So could the Government give the House some hints?
They are also consulting on minimum eligibility requirements, including an option of requiring level 4 or above—that is a grade C in old money—in maths and English at GCSE. I found it quite hard to work out the numbers affected, because the tables in the equality analysis are quite confusing, but the Minister may be able to shed some light on that. I am pretty sure this will have a differential effect with regard to region and disadvantage.
It is not just about access to university; it is about access to the loan book. The Minister can confirm that presumably a student whose parents—or who themselves—could pay fees upfront has no problem, but then what happens to the more than half of pupils eligible for free school meals who will leave education without GCSE maths and English? Can the Minister tell the House what work has been done to look at the effect of such a plan on poorer children and young people from deprived areas?
There is also a proposal to limit funding for foundation years—and yes, once again this has differential effects. The equality analysis says that
“mature students and black, Asian and mixed/other ethnic minority groups … may be at greater risk of reduced access to HE and choice of provision”.
This is all really very disappointing. Augar was launched amid concerns about fairness and affordability for students, but those are clearly not the drivers at the heart of this response. The loan reforms are regressive and will hit lower-earning graduates. Rather than focusing on raising standards in schools and in HE, they risk penalising those who already find it hardest to get on through education.
Meanwhile, there is nothing on living costs for students, nothing to boost efforts on widening participation and nothing on the timing of admissions—except after a very big think they have decided not to do anything at all about post-qualification admissions. The consultation on the lifelong learning entitlement is still really vague. There is quite a lot on the how but not very much on the what, and certainly not on the why.
We have waited a thousand days for a response to Augar. That is roughly the length of an undergraduate degree, I reckon—you could probably do a PhD in that time; it is pretty much three years. After all that time, where is the strategic plan? Where is the vision for a strong, diverse higher education system that could help all of our young people and students to fulfil their potential? This feels like a missed opportunity. I hope the Minister can persuade me otherwise.

Lord Addington: My Lords, this is a very odd Statement because it suggests one or two nice things but does not really give us much detail. As the noble Baroness has just pointed out, the noble Lord, Lord Forsyth, is missed on this one. His intellectually honest toe-caps have gone into the ribs of many of us here and the Government Front Bench has actually felt them on many an occasion. A student finance system that celebrates going from 23% repayment to maybe half is a weird thing. Why do we still persist with this loan system? It is seen to be financially failing—unless creating a form of junk bond at the end of it is the aim. There will be not quite so much junk; that would seem to be about the essence of it.
If we are looking at how we get further education better into the system by giving better bonuses for lifelong learning—a suggestion of something that might be better in the future—we have to get people to go on the courses. What are we doing about careers guidance that would improve what people know about this? The first thing you will have to do is to train teachers, who are, let us face it, predominantly graduates, and we all know that what we did is right—if you do not come from that group, then you are very much in a minority—as we “stick to nurse”. Where is the training to make sure teachers are giving the right information to people or at least stand half a chance of so doing?
This has not got any easier with the introduction of T-levels and the removal of BTECs, which provided a series of fairly established ways of finding your way into higher education and the level 4 and 5 qualifications which are mentioned. We need some clear guidance to get this through and see how they are going to all tag in together. At the moment, I would say that it is an optimistic mess. We are not quite sure what the Government are expecting. It is going to be better, and it just might be that, after my entire lifetime, in relation to people at levels 4 and 5—I think it is technician-level qualification—we might be starting to address that,  but we are doing it in a very chaotic way. The paths into education have fundamentally changed over the last couple of years, and they have changed in an incoherent manner.
To come to the last point, which the noble Baroness also touched on, if we have a special educational needs review taking place, why are we putting in a requirement for English and maths, which are the things that certainly the group I come from—that is, dyslexics—find difficult? It is 10% of the population; stick in dyscalculia, and that is another 3%, and those are conservative figures. Why are we making it so much more difficult for this group to get on to that pathway? When it comes to adult entrants into education, we are getting rid of BTECs, which were the way in, and we are saying that people have to have two A-levels. If you want later entrants—if you want entrants after having done, say, a level 4 course—why are we putting this in? It does not make any sense. Can we have some coherence about this?
Reading this as it stands, the Equality Act might have quite a lot to say about it. I have mentioned only two groups; others are available. Can we get some coherence around this? At the moment, the Government have waved a few ideas at us. The repayment structure may be slightly better for the Treasury, but I do not think it makes much difference to anybody else. Can we please hear what the Government are really about? If they are going to limit the amount of money we waste on the repayment structure, they have set themselves a very unambitious target.

Baroness Barran: I thank the noble Baroness and the noble Lord for their remarks and their questions. The noble Baroness rightly focuses on issues of fairness and access to higher education. The Government have tried to balance fairness to students with fairness to the taxpayer. Currently, a great proportion of the subsidy that the taxpayer makes towards higher education is funded by those who did not have the benefits of that higher education themselves. Students going to university have the advantages of their degree throughout their working lives.
Our estimate is that, over the course of their degree, the average graduate will borrow £39,300 from next year. Today, the average graduate would repay £19,500, and under the new proposed system, they would repay £25,300, so there is still a tremendous subsidy for the average graduate. The noble Baroness focuses on those who are more marginalised and are lower-earners, and she will be well aware that below £25,000 there is no repayment at all.
The noble Baroness also talked about the consultation around limitations on student numbers and minimum-entry requirements. This is, as she well understands, very much part of our drive towards having higher-quality courses. The numbers affected by the consultation—and I would stress it is a genuine consultation; we genuinely want to understand how stakeholders feel about this—and affected by proposed GCSE requirements would be less than 1% of students, and around 1% for the suggested entry requirement at A-level.
The noble Lord focuses on the barrier that that may present to those with special educational needs, but I would respectfully suggest it is also a tremendous barrier  for everybody not to have English and maths at a basic level, since they are such an important entry requirement for almost every job. There are not many jobs in this country that you can do if you cannot read, write and add up. That is why the Government have extended their support, so that students can retake English and maths for whatever reason that might be.

Lord Addington: My Lords, will the noble Baroness give way for a moment? If you have got a disability, it means you have trouble doing it. You have legal requirements that say you are not supposed to discriminate and there are other ways around it. For instance, voice operation—which is available as a standard item on every computer for English. If you are not going to bring that into the system—which would have been a perfectly valid answer—why are you excluding them?

Baroness Barran: There is absolutely no intention to exclude at all. The department is heavily focused on trying to improve outcomes for pupils with special educational needs and the noble Lord will be aware of the enormous range of outcomes depending on which school a child with the same disability or special need goes to. We want to equalise those, so it should make no difference where a child goes to school in terms of their outcomes.
If I may continue, the noble Baroness questioned what we were doing in relation to foundation years. I did not quite follow her argument. We are consulting on reducing the maximum fee and loan limits for foundation years, from the current just over £9,000 to £5,197, and that is to bring it in line to be the same amount as an access to a higher education diploma. We hope it will make those foundation years—which are an important access route for those who may be more disadvantaged to get into higher education or potentially for mature students—more accessible.

Baroness Sherlock: The Minister did not follow my argument. Maybe when she reads Hansard, she will see that all I did was to quote from the equality analysis that her own department produced to accompany the proposals, to show that it could have a differential effect on different groups.

Baroness Barran: Hopefully there will be a less differential effect than there is currently.

Baroness Sherlock: No, I am sorry—I do not want to delay the House—but if she could actually read the equality analysis, it said that, as a direct result of the reduction in the foundation years loan, if providers found they could no longer fund and provide those courses at the lower rate, it could reduce access to higher education. It is there in the equality analysis.

Baroness Barran: I thank the noble Baroness for clarifying that.
Both the noble Baroness and the noble Lord questioned whether there was a strategy and a plan behind this. I am impressed, but not surprised, that the noble Baroness can do a PhD in 1,000 days. I will, if I may, try to set out the wider context a little. Our clear ambition is  that students should succeed and achieve their potential. We are doing that in a number of ways. The first is by expanding the choices that we are offering them—for example, by expanding the higher technical qualifications, offering modular learning options and introducing T-levels, as well as the existing qualifications. We are expanding choice.
We are investing very substantially in higher education: £900 million pounds in the next three years, in addition to the £2.8 million that we have announced for further education, and the recent settlement for schools, as well as introducing a specific scholarship option for high-achieving disadvantaged students, so that they too can realise their potential. A great deal of work is going on, led by the Office for Students, on the quality of degrees.
On the noble Baroness’s point on student number caps, these approaches have been used in the past. I think our real aim is to identify those courses with very high drop-out rates or very poor graduate progression outcomes, and make sure that those are limited, but in no way to try to affect the more successful and higher-quality courses.
Our bottom line is that we want to maximise and continue to build on the successes in offering opportunity to students. Students from disadvantaged backgrounds are 82% more likely to go to university today than in 2010. We want to build on that and on the increase in students from black, Asian and minority ethnic communities going to university, in making sure that this country offers opportunity to all.

Baroness Falkner of Margravine: My Lords, I welcome the lifelong learning and other measures that will improve social mobility, but the higher education sector needs a root-and-branch review of the business model of our universities. Perhaps I need to declare that I have a family member who works in higher education and I have been associated with several universities in the past.
We are in another week when UCU members are on strike because of a broken system, where their pensions and working conditions are under attack, while managers pay themselves such astonishing amounts as to make even the private sector blush. USS administrators are using valuation scenarios so risk-averse as to lack any credibility, and the world-class system that the Government rightly applaud is in real danger of being depleted of future academic talent as rewards fall further behind, and the taxpayer’s interests are ignored under the pretext of university autonomy. When will the Government address these blatant anomalies in a sector that seems to have lost its sense of purpose? I associate myself with the remarks of the Labour Front Bench about vision.

Baroness Barran: The noble Baroness asks a number of important questions about the funding model for our universities but, as she acknowledged, they are incredibly successful in attracting international students, with over 605,000 of those students coming to our universities. In the other place the other day, my right honourable friend the Secretary of State quoted  the figure that of every four international students, two go to the US, one comes to the UK and the rest of the world shares the last one.
We are aiming to build on that success; the investment that we announced along with this package aims to focus on both teaching and facilities to make sure that the highest-quality future-facing education is offered in our universities. My right honourable friend the Minister for Universities and Higher Education has been extremely active in stressing her concerns about how students’ experience has suffered over Covid and the responsibility of universities to respond, get back to face-to-face teaching and meet their needs, but I am happy to pick up in writing some of the wider points that the noble Baroness raised.

Lord Johnson of Marylebone: My Lords, I strongly support the Government’s student finance reforms, which strengthen what I think is the least bad system of funding higher education, but I have to say that I am puzzled by why the Government appear to be disavowing what in my view has been the standout levelling-up policy of the last decade: the removal of student number controls, which have allowed disadvantaged young people to go to university in far greater numbers—they are 80% more likely to do so in 2021 than they were in 2010. I would be very grateful if the Minister could reassure me that any student number controls will be imposed only in the most egregious cases of poor outcomes identified by the OfS and will not be used as a back-door means of reimposing sweeping caps or quotas on aspiration across the entire system.

Baroness Barran: I am delighted to reassure my noble friend that we will not be introducing the sweeping caps to which he alludes. As he said, universities have been extremely successful in terms of social mobility. By consulting on student number controls, we are not taking a position on what the correct proportion of people going to university should be, but we want to tilt provision towards the best outcomes for students and, as I said, make sure that our further education system also offers fantastic pathways to success.

Baroness Blackstone: My Lords, I admire a great deal of what the Government are trying to do in relation to the future of higher education but I suspect that there is a bit of a muddle going on: the Government’s right hand does not seem to be doing the same as their left; that was just very ably put by the noble Lord, Lord Johnson. I start by asking why it has taken so long—it is two and a half years since the Augar report was published. If the Government are so concerned about having a high-class higher education system, with large numbers of international students, to reach out to the most disadvantaged and to ensure better outcomes, there is some urgency in this. Of course it is complex but perhaps the Minister can say why it has taken so long to reach any kind of conclusions on this report. Moreover, we are going to have a lot more consultation. I am not against consultation, but this one could have started two years ago, in which case we would be rather nearer to getting some kind of conclusion on where we are going next.
I also want to pick up what my noble friend on the Front Bench said about the effects of the proposed changes in student finance. How can the Government justify the much higher repayments that the least well off will pay because of the many years of interest charges—a lower rate of interest than now but, nevertheless, a much longer period for which they will be paying interest—whereas the wealthier students will pay off their loans very quickly and not incur all this interest? Is it not time to introduce a truly progressive graduate tax, rather than the regressive system of repayments being put forward today?

Baroness Barran: The noble Baroness partly answered her first question herself. She understands it very well. This is hugely complex and sensitive. The issues around repayment rates and the relative burden on the taxpayer versus the student all need careful consideration. Obviously, there are huge financial implications. The noble Baroness will have seen the figures on the projected size of the student loan book in 2043 if we did not do anything about this, which is half a trillion pounds—I was about to say dollars, because “trillion” always sounds like dollars, but it is pounds.
On the consultation, I feel slightly that as a Government we are damned if we do and damned if we do not. If we had not consulted, I am sure we would have been criticised. I know that the noble Baroness was asking about the timing of the consultation; that also had to align with the work done on the policy. We hope that the consultation will help to answer some of the disadvantage questions to which the noble Baroness, Lady Sherlock, on the Front Bench and the noble Baroness, Lady Blackstone, referred. We really do want to understand how those groups that might feel the most difficulty in accessing higher education, particularly this new modular approach that will be offered, will be impacted so that we can structure the policy in a way that makes it most accessible.

Bishop of Durham: My Lords, I declare my interest as chair of the National Society. I thank the Minister for what is a very significant Statement, with wide-ranging implications for higher and further education, social mobility and the economy, current and potential students, and the future of many communities. A number of the policy ambitions are welcome, such as the higher technical qualifications. My concern, and hence my question, is about the unintended potential consequences of some of the proposals. What steps are the Government taking to ensure that these proposed reforms actively increase opportunities for students from disadvantaged backgrounds who aim at professional careers in our vital public and community services, or in fields such as the creative industries, which seem to fall outside the high-quality and high-cost criteria for intended increases in strategic investment described in the consultation documents?

Baroness Barran: I may have touched on some of the points that I hope can address the right reverend Prelate’s question. To go back to the consultations, they are explicitly to help us avoid unintended consequences  and to get input from as wide a circle of stakeholders as possible. Obviously, we believe, as Philip Augar did in his review, that a modular, lifelong education system with the funding to back it up will be accessible, lead to greater career development over somebody’s lifetime and meet the skills needed in the economy. Specific elements, such as the scholarship I mentioned, can be used not just for higher education but for further education and apprenticeships. Lastly, these changes must also be taken in the context of the major investment in and major reforms we have made to further education and the bringing together of the funding approach between higher technical qualifications at level 4 and 5 and degrees.

Lord Storey: My Lords, the Minister talks about fairness in access and increasing the options for young people. But we know how the EBacc has reduced the options for young people in our schools, particularly those who want to do a creative subject. By doing that, the pipeline into universities, and indeed FE colleges, has become less, so we are seeing low numbers following creative subjects in higher education. Indeed, in the whole university sector there is only one professor of music. Surely if we want to increase options, we have to ensure that those options are available at our secondary schools.

Baroness Barran: I am certainly aware from the many schools I visit that some of the best of them offer a great deal of choice, both within and outside their curriculum. I understand and hear the noble Lord’s concerns, but if we look at the success of our creative industries—which are world beating, in that well-known phrase—we see that we are clearly providing our children, through school and through further and higher education, the skills they need to be very successful within them.

Lord Willetts: My Lords, I am very grateful to the Minister for her Statement and very much agree with the points made by my noble friend Lord Johnson. The changes to the financing of higher education make sense, because the system was always envisaged as one in which the majority of graduates would pay back the cost of their education. An arrangement in which we ended up with more than half of all student loans being written off was not the kind of balanced system originally envisaged.
I ask the Minister to agree that one of the reasons why the English higher education system stands out as one of the better systems in the world is the autonomy enjoyed by universities. We already have a consultation from the OfS on minimum thresholds to measure university performance, we will now have a consultation on number controls and we have another consultation on minimum educational requirements. Does she accept that if all these different, highly intrusive and detailed interventions are piled up on top of each other, the Government will be not boosting the quality of universities but eroding their ability to run their own affairs and therefore threatening the quality of our universities? I invite her to agree that if all those measures are imposed in total on universities, it would be hard to describe our system as one of university autonomy.

Baroness Barran: I absolutely agree with my noble friend about the importance of autonomy, but I hope he agrees with me that there is also a real responsibility to have transparency and for students to be really clear on the impact of this major decision and financial commitment they are making and what their future career and further education prospects are, based on the choice of course. We are not aiming to restrict university autonomy. We are aiming to improve transparency and, through transparency, to see that autonomy translate into even higher quality than we have today.

Baroness Fox of Buckley: My Lords, I welcome HE reform and have no objection to, for example, introducing minimum academic eligibility requirements to go to university, although linking access to student finance seems a cheap avoidance of winning the arguments for the virtues of the academic purpose of university. Is linking the value of a course’s quality to good jobs not a philistine undermining of knowledge for its own sake, turning universities into glorified job training centres? Is there a danger of a technocratic version of social mobility that instrumentalises the purpose of university, confirming that the only way to improve your social standing is to get a degree or go to university—the very opposite of what I assume the Government intend?

Baroness Barran: I apologise to the House if I was not completely clear in my earlier answer. I hoped and intended to refer to both the quality of jobs and the further education opportunities. Absolutely, our R&D is critical for the future of the country, and the quality of our thinking and debate, which I know the noble Baroness supports profoundly, is also really important. This is not just about jobs. But equally, I was made aware of six computing courses where the dropout rate is over 40%. Is that not something we should look at, compared with other courses where the dropout rate is much lower?

Baroness Morris of Yardley: I understand why the Government want to make sure that students have the skills they need to manage the course, but there has been a lot of concern caused by the minimum eligibility requirements. Can the Minister confirm that the important thing is that the students have the skills they need to do the course, not that they have GCSE English or maths at level 4? The two things are not the same.
Secondly, successive policy papers from this Government have undermined the creative sector within universities. They have very much encouraged, and I agree with it, maths, science and engineering. I notice that humanities get a mention in this Statement; that is the first time for a long time. But in this policy document, what is there that will nurture and help to progress the creative industries in our universities, which are very much wanted by the economy and employers?

Baroness Barran: In relation to the point about skills, on one level, of course, I cannot disagree—I never enjoy disagreeing with the noble Baroness. Of course, people should have the skills they need to  access their degree. However, in the majority of cases, if not the vast majority, English and/or maths at GCSE level may well be necessary for the course that they are aiming to do. I stress that this is a consultation; we genuinely have not taken a view on it. There has been a great deal of focus in the media, in the other place and in your Lordships’ House tonight on the GCSE requirement. We will also be consulting on whether one should reintroduce a minimum A-level requirement. But our focus on foundation degrees and on additional opportunities to achieve the levels in English and maths are also part of how we will make sure that this happens.

Baroness Bennett of Manor Castle: My Lords, on the new lifelong learning entitlement, are the Government not simply loading even more debt on to a generation already carrying an enormous weight of debt, and extending that debt for even longer? It is a great privatisation of the cost of education, which used to be borne by the public purse collectively, by an entire society that benefited from it, and by employers who benefited from those skills. Instead, what we are seeing is an individualisation and a privatisation. For the 40 years when people would expect normally, in many cases, to be settling down, having a family and buying a house, they are going to have this weight of debt settling on their shoulders, and it will be even a higher percentage of this generation.

Baroness Barran: I absolutely do not recognise the description that the noble Baroness paints of the lifelong learning entitlement. If she does not agree with the Government’s decisions on this, she might want to, if she has not already, look at the Augar report’s recommendations. There is a clear need expressed: 24% of people when surveyed said that they had considered continuing and part-time education. We do not know how many students who go straight from school to university would rather do a more modular approach. Nobody is imposing this on the student body; this is a choice for people to build their careers and their skills, to seize opportunities and to build our economy.

Nationality and Borders Bill
 - Report (1st Day) (Continued)

Clause 12: Accommodation for asylum-seekers etc

Amendment 29

The Lord Bishop of Durham: Moved by The Lord Bishop of Durham
29: Clause 12, page 15, line 39, at end insert—“(4A) In section 16 of the Nationality, Immigration and Asylum Act 2002 (establishment of centres), at end insert—“(4) For the purposes of this Part, references to “persons” does not include—(a) children;(b) women;(c) individuals with a disability;  (d) individuals who have been referred to the National Referral Mechanism;(e) individuals who have a received a positive conclusive grounds decision following a referral to the National Referral Mechanism;(f) survivors of torture;(g) individuals who identify as LGBTQ+; and(h) family members of any individuals referenced in this subsection.(5) For the purposes of this section, “family members” includes—(a) dependent children;(b) partners and spouses;(c) in relation to children—(i) their siblings;(ii) any other individual who is the relevant child’s guardian.””Member’s explanatory statementThis amendment is to restrict the use of accommodation centres for accommodating people seeking asylum so that the stated groups and their family members cannot be accommodated in them.

Bishop of Durham: My Lords, I have tabled Amendment 29, with the noble Baroness, Lady Lister. I declare my interests in relation to RAMP and Reset, as set out in the register.
I have tabled this amendment again because in Committee we did not have as satisfactory a response to our questions as we had hoped on the basic details of what these accommodation centres will look like. We do not know how many or where these will be. We do not know how many people will be accommodated in each one. I am not assured that the previously terrible, and now still wanting, conditions provided at Napier will not be repeated. We are being asked to agree to the use of accommodation centres without any information or reassurances of what they will look like, where they will be, and so on. We can only go on what we see as existing provision on MoD sites. That makes me very concerned—I remind the House that I had the privilege of visiting Napier barracks recently—and gives me strong reason to call for their use to be restricted, so that the vulnerable groups set out in this amendment cannot be accommodated in them. I continue to believe that placing people seeking asylum in housing in communities is much better for everyone.
I therefore ask the Minister for her agreement that we are given opportunities to discuss the design of these centres before the relevant regulations are laid in draft and before contracts are offered. We would like some clarity on when the regulations will be laid, a clear commitment that no unaccompanied children will be placed in such centres, and, although we would prefer no families at all in such centres, if there were to be families with children there, that suitable family accommodation and suitable safety arrangements for them would be provided in them. It is not my intention to press this to a vote. We hope that this debate will give an opportunity for the Minister to place some further reassurances on the record about accommodation.

Baroness Lister of Burtersett: My Lords, I am very pleased to support this amendment—

Lord Russell of Liverpool: I assume that the right reverend Prelate is moving the amendment.

Bishop of Durham: I beg to move.

Baroness Lister of Burtersett: My apologies; it is getting late.
I am very pleased to support this amendment. When we debated it in Committee with regard to children and families, the Minister said that there were no current plans to place them in accommodation centres but that if a child was destitute and there was a place for the night, she could not say that the child would not be so placed. However, she promised to think further on the points made and I hope that she has been able to do so. I have two reflections which build on what the right reverend Prelate has said.
First, the Minister suggested that a child in a family, who was destitute, might have to be placed in a centre, but given that she told us that such centres were only for people who are destitute anyway, I am not sure how much comfort to take from that. Can she elucidate further please? Can she also confirm that it would only be for a night, or possibly two, that a family would be housed in an accommodation centre as an exception, which was what she implied? Can she give us an assurance that no family with children will be placed in a centre for more than the briefest of time in an emergency?
The Minister also reminded us that unaccompanied asylum-seeking children would not be placed in such centres. As the right reverend Prelate said, it would be good to have absolute assurance to that effect. Can she tell us what will be the position of a child who turns 18? Might they be moved into such a centre at that point? It is impossible to consider this group without also taking into account the fears expressed by many organisations that the age assessment clauses, which we will debate later, could mean many more children wrongly being assessed as adults. Therefore, in practice, unaccompanied children might be housed in such accommodation, which clearly the Government rightly consider unsuitable for unaccompanied children. What safeguards can there be against that? In Committee, I also asked the Minister what assurances she could give us that the use of accommodation centres will be accompanied by more robust screening and protection than exists at present, to ensure that those with particular vulnerabilities are not housed in such centres.
However, no such assurances were given, other than the repeated statement that there will be individual assessment before placement in accommodation centres. None the less, it is clear from various sources of evidence that such an assessment does not exist at present nor is it providing effective screening for those with particular vulnerabilities. Indeed, the APPG on Immigration Detention, of which I am a member, has been told that, despite the June 2021 High Court ruling, there does not appear to be any significant improvement in such assessments. Charities report that people with particular vulnerabilities continue to be accommodated in Napier barracks. Therefore, can the Minister tell us what is being done to improve the assessment process?
Finally, as a fellow insomnia sufferer, the Minister said she would take back the point I raised about the impossibility of sleeping in Napier barracks dormitory-style accommodation because of the constant noise at night. I wondered if she had anything to report on that.

Baroness Hamwee: My Lords, I do not make light of the difficulty of providing accommodation. Batting the blame between central and local government, as is sometimes done, is not going to advance the issue at all. As the right reverend Prelate has said, the debate in Committee focused on Napier. I thought it rather conflated accommodation of asylum seekers on arrival with long-term accommodation. Only a decade ago, my honourable friend Sarah Teather MP—as she was then—achieved very significant change, as a Minister, in both the law on, and the attitudes towards, the care of children with families in detention and subject to removal. More recently, we have had Stephen Shaw’s report on the impact on vulnerable people, and so on.
I accept that the Minister will say that the accommodation in question is reception and not detention. In a way, that is my point. The objective must be to receive people thoughtfully, humanely and in a welcoming and supportive way. Accommodation centres must not feel like detention. There was some discussion in Committee about whether people would be able to leave them—not for specific appointments, but because they felt like going out for a walk. The way that they are designed, organised and staffed is absolutely essential to their good working. The Explanatory Notes refer to “efficiency”. I do not think that this is incompatible with the approach that I have outlined, but they also refer to “compliance” and that worries me more. I wonder why that merits a separate mention.
This amendment demonstrates the concerns of the sector which arise from experience over a long period. I missed signing it by a couple of minutes on the day it was tabled by the right reverend Prelate. However, on behalf of these Benches, we support it.

Baroness Bennett of Manor Castle: My Lords, I rise very briefly to offer Green support for this amendment and to address one specific point and one specific question. The right reverend Prelate, in introducing this, set out how little we know about what is proposed of these accommodation centres, and how much we know of their horrors. In Committee, the Minister and I discussed a particular horror with which I had personal contact during the Covid pandemic.
I also note that there is a continuing situation where the High Court ruled that people in hotels and other accommodation are entitled to £8 a week to meet some of their basic needs. This includes being able to afford a bus fare to attend an interview, or to buy some basic hygiene products. Looking at the list of people who the right reverend Prelate has included in this amendment, it is worth a question here. Imagine being a parent of a child and not ever being able to buy any sort of treat for your child. If the child really wanted some little piece of food, the parent would not be able to buy it. Instead, they would get only what is provided in the three meals a day in the canteen.
I know that we are still waiting for a description of what these accommodation centres are like. Can the Minister confirm, following the High Court ruling,  that there will be at least a very small basic payment for people in the accommodation centres so that they can have some kind of choice and some kind of life?

Lord Rosser: My Lords, I will certainly wait with interest to hear the response that the right reverend Prelate the Bishop of Durham gets to this amendment, because, if I understood him correctly, he said that it is the same amendment he tabled before. I understand that he asked for information and assurances about accommodation centres in Committee, and it is because he did not get them either in Committee or since then—he has had nothing in writing; presumably he asked the questions quite clearly in Committee about what he wanted—that he has had to table this amendment today, and will table it again, seeking to exclude vulnerable groups from the accommodation centres.
I hope that in their response the Government will explain why it has been so difficult to give the right reverend Prelate the answers to the questions he raised last time seeking information and assurances in respect of these accommodation centres. I do not understand what the difficulty can be since, presumably, in putting forward that there will be accommodation centres, the Government have some idea of what they will and will not provide and what they will and will not be like, and are in a position to give assurances when they are sought.

Baroness Williams of Trafford: My Lords, I thank noble Lords who have spoken to this amendment. I just say from the outset that the Bill does not actually create accommodation centres—that was done back in 2005—but when we have more detail on the accommodation centres, I will be very happy to provide it to the right reverend Prelate, including any detail about design.
On the question of how long someone might stay there, the usual time is about six months. I agree with the noble Baroness, Lady Hamwee, that they have to be humane, welcoming environments.
On the question of who we might accommodate in the centres, as I said before, we will accommodate people only after an individual assessment. There are no current plans to use the centres to house families beyond this. The centres will be used to accommodate only those who require support because they would otherwise be destitute, so those who obtain accommodation with friends or family are not affected by the measure. It is to prevent people becoming destitute.
The provision has nothing to do with unaccompanied minors; it is about adults in the asylum system and their dependants who are accommodated by the Home Office under the powers in the Immigration Act. Unaccompanied minors are not accommodated under these powers.
On the point about certain individuals not being suitable for these centres, there are no plans to accommodate in this type of accommodation asylum seekers and failed asylum seekers who are not destitute. As I have said, those who can obtain accommodation with friends and family will be unaffected. Individuals will have opportunities to disclose information as  supporting evidence as to why they should not be housed in accommodation centres, and we do not have current plans to use centres to accommodate those with dependent children.
I may have said this before, and the noble Baroness, Lady Lister, has just mentioned it: it is not possible to completely rule out placing those with children in accommodation centres in the future, because if there are no available flats or houses to house them in, it might be a better option for them, depending on their situation, and certainly better than using hotels.
On whether they are detention centres, the answer is no. I do not think the noble Baroness, Lady Hamwee, was asking whether they were detention centres; she was making the point that they are not detention centres, and that is correct: people are free to move about. Individuals applying for support because they are destitute will naturally be expected to live there because they have nowhere else, but, as I have said, they can leave the centres at any time they wish because they have obtained alternative accommodation.
I had just asked a question of the Box about payment, and I am going to double-check whether I have the answer. Here it is: facilities at the accommodation include catering, therefore individuals will not require cash for food during their stay, but cash might be provided for other essential items not provided in kind. I hope that with that, the right reverend Prelate will be happy to withdraw his amendment.

Bishop of Durham: My Lords, I thank the Minister. I take very seriously the commitment to ongoing conversations, because the important thing is that the sector and people like us can stay engaged in the conversation to ensure this. We will watch as accommodation centres grow in number so that they are places of welcome and so on, but the purpose was to get some more on the record, for which I thank the Minister. I beg leave to withdraw the amendment.
Amendment 29 withdrawn.

Amendment 30

Baroness Stroud: Moved by Baroness Stroud
30: After Clause 12, insert the following new Clause—“Changes to the Immigration Act 1971(1) The Immigration Act 1971 is amended as follows.(2) After section 3(2) (general provisions for regulation and control) insert—“(2A) Regulations under subsection (2) must provide that persons, and adult dependants of persons who are applying for asylum in the United Kingdom are granted permission by the Secretary of State to take up employment if—(a) a decision at first instance has not been taken on the applicant’s asylum application within six months of the date on which the application was made, or(b) a person makes an application or a further application which raises asylum grounds, and a decision on that new application, or a decision on whether to treat such further asylum grounds as a new application, has not been taken within six months of the date on which the further application was made.  (2B) For the purposes of subsection (2A), regulations must ensure that permission granted allowing people applying for asylum in the UK, and their adult dependants to take up employment, are on terms no less favourable than the terms granted to a person with recognised refugee status.(2C) This permission is to be valid until the claim is determined and all appeal rights have been exhausted and individuals granted permission to work will be issued with physical proof of the right to work.””

Baroness Stroud: My Lords, Amendment 30 in my name aims to introduce the right to work for asylum seekers who have been resident in the UK for more than six months. The arguments for the right to work have been well articulated in Committee and earlier, but I will summarise them so that we are clear.
I will begin with the economic arguments. The latest figures show that 125,000 people are waiting for an asylum decision. Every study shows that the net benefit to the state would be tens or hundreds of millions of pounds every year in improved tax-take. The UK economy is recovering after Covid and a lot of jobs have been created, but this has, in turn, created labour shortages. It makes no sense that asylum seekers who can drive HGVs or serve in our NHS are forced to sit around doing nothing for more than a year while they await a decision from the Home Office.
The second argument is one of integration. There is considerable evidence that the right to work has a large, positive impact on the integration of asylum seekers. The Government’s Migration Advisory Committee itself recently underlined that shorter waiting times had a large, positive impact on long-term employment outcomes for asylum seekers. Indeed, discussing refugees’ access to the UK labour market, one leading academic in asylum and refugee policy refers to what she calls the
“inherent contradiction between UK refugee integration strategies that focus on employment, and restrictive government policies that negatively affect access to the labour market.”
There is also the argument of public support for this policy. The policy is overwhelmingly popular with the public: 73% of red wall voters support the right to work, according to recent polling. Business leaders back easing the ban on the right to work, with the Survation poll showing that two-thirds of business leaders back it. It is rare to find a policy that has these three characteristics: economically advantageous, socially advantageous and politically advantageous.
There is one final reason why this is an amendment that the Government should accept. There is also a basic human dignity argument for this policy. We believe that every individual should be able to support themselves and their family. In fact, we would go further and say that, as Conservatives, we believe that every family has a personal responsibility to do so where they can. We have repeatedly, as a party, made the argument that work is the best route out of poverty, so the intention of this amendment is to ensure precisely that. Let people support themselves and create their own pathway from poverty to prosperity while they await a decision. The lack of the right to work makes people vulnerable to exploitation, declining mental health, poverty and modern slavery.
If the human dignity arguments do not convince Ministers, this amendment should also be viewed as purely pragmatic. Reforms to the asylum system proposed  through the Nationality and Borders Bill will take time to come fully into effect. In the interim, while asylum cases are being processed, the asylum system continues to be under considerable strain. By offering asylum seekers the right to work, the Government will take pressure off themselves. I anticipate, however, that the Minister and other colleagues might be inclined to dismiss this amendment, using the argument that the right to work could be a so-called pull factor. So, before I finish, I want to address the reasons I believe this is not the case.
First, push factors, such as war and famine, as we are seeing in Ukraine, drive refugee flows far more than pull factors do. Secondly, as I have said before in this House, the real pull factors are our language, our culture, the rule of law, democracy, historical ties through the Commonwealth, family connections and liberty—and we are not about to sacrifice any of these, thank goodness. Thirdly, it is worth noting that the UK is currently an outlier in enforcing a 12-month wait period for work and then placing strong restrictions on which employment can be taken up. No other nation, whether any across Europe, the States, Australia or Canada, has such stringent requirements. It is worth asking why they have not considered the right to work to be a pull factor. Finally, this view is backed up by the experts. The Government’s own Migration Advisory Committee underlined that there is no evidence in academic research that people decide to claim asylum based on these kinds of factors. The Home Office itself commissioned a study that showed little evidence of a link between economic rights and the destination choices of those seeking asylum, and, to my knowledge, it has never produced evidence to the contrary.
All of this is to say that I believe that the Government could quite legitimately, without any nervousness and in line with their own poverty strategy of families working their way out of poverty, adopt this amendment that allows asylum seekers to work after six months of being in the UK. I will be listening carefully to the Minister’s response. I beg to move.

Baroness Lister of Burtersett: My Lords, I strongly support Amendment 30. In Committee, the Minister said that the Government’s opposition to the right to work was based less on the pull factor argument than on the impact on the integrity of the labour market. That is just as well. As the noble Baroness said, we have yet to see convincing evidence of the pull factor any better than the selective and somewhat misleading quote from a study that the Minister offered in Committee. She mentioned an impact assessment on that, which I believe is yet to materialise. When can we expect it?
If we consider the numbers involved, it is difficult to see how labour market integrity will be compromised. Indeed, the combination of the effects of the Bill and the welcome promised speeding up of applications, to which Amendment 53 in the name of my noble friend Lord Coaker should add some teeth, should reduce the numbers affected significantly. I imagine that the Migration Advisory Committee will have considered the integrity of the labour market before recommending the right to work after six months and in any occupation. Yet the Minister did not even mention the MAC report raised by a number of noble Lords in Committee.
Neither did she mention the MAC’s argument, and one central to the case I made, concerning the impact of the ban on working on integration, mentioned by the noble Baroness, Lady Stroud, which supposedly remains a government goal. Nor did she acknowledge the statement I read out from MIN Voices, made up of asylum seekers, who said that not being able to work made them feel less than human and corroded their self-respect and dignity—again, echoing what the noble Baroness, Lady Stroud, said. As the chair of Surrey Heath Conservatives pointed out on ConservativeHome —my new favourite reading—this very much chimes with Conservative values, so that in his view the ban is “fundamentally un-Conservative”.
I conclude by repeating the plea of MIN Voices’ plea to
“see us as human beings not a number. Let us build our life and future and not waste our time and skills”.
I should also mention the article by Sarah O’Connor of the Financial Times, who ended her recent analysis of the labour market implications of the ban by saying that
“if people want to work, we should let them”.

Baroness Meacher: My Lords, I very strongly support this amendment, to which I have added my name.
In Committee, the Minister referred to the integrity of the labour market as a route being one reason to reject this amendment and the noble Baroness, Lady Lister, dealt with that very well, so I will not repeat her comments. The only other real argument against reducing the UK’s exceptional period before asylum seekers can apply for permission to work was, as the noble Baroness, Lady Stroud, said, the so-called pull factor encouraging asylum seekers to come to this country. I want to say a bit more about that because it really is very difficult to take seriously under the circumstances. When Germany allows asylum seekers to work after three months, Italy after two months, Portugal after just one week, can our Government really justify the current one-year ban and argue that if we changed it, there would be this serious pull factor problem?
If the Minister accepts this amendment, we will have the same employment restriction as France, Spain, Denmark, Poland, the Netherlands, Ireland and Greece, and we would remain more restrictive than all other western European countries. Ireland was the only other western European outlier until it recently reduced its nine months restriction down to six months in 2021. This amendment would do no more than Ireland did to bring it into line with the list of countries I have already referred to.
The fact is, the UK has a longer employment restriction for asylum seekers than any other comparable country. I just feel ashamed of us, to be honest—I think it is disgraceful. Moreover, it seems the Government have no grounds to argue that enabling asylum seekers to work will, in fact, act as a pull factor. A recent review of 29 academic papers on this subject found that there was no correlation between the right to work and where people seeking asylum chose to seek protection; the noble Baroness, Lady Stroud, explained that perfectly clearly so, again, I do not need to repeat her words.
The other very important reform in this amendment is to end the iniquitous limitation on asylum seekers, even after the 12-month ban, to jobs on an extremely limited shortage occupation list—I seem to remember one of them was a ballerina or something. How many asylum seekers can really take up ballet? This renders employment impossible for the vast majority of asylum seekers until their application is finally approved.
The assumption behind this amendment is that asylum seekers would, after six months, become automatically eligible for a work permit, enabling them to become self-employed or to take up any job, to pay taxes and national insurance, and so on. It will be very difficult to justify not accepting this amendment.
In summary, I do not accept the arguments put by the Minister in Committee. I just hope that she and her colleagues have reconsidered their position. On 8 December 2021, I understand that the Home Office said in a Written Statement that it had concluded its review of the current policy. This is surely a perfect moment to introduce reform.

Earl of Dundee: My Lords, I join my noble friend Lady Stroud and others in strongly supporting this amendment. The proposition is that asylum seekers who have waited six months for an initial decision should be allowed the right to work.
Clearly, and as has already been said, this measure can provide important safeguards. Not being held up from work assists motivation, attitude of mind and mental health, as it also preserves dignity and protects against the danger of modern slavery. Yet it might be alleged, or wrongly assumed, that such benefits to the applicant come at a high price—even at an unacceptable price—to the host country: that the workforce would thereby become top-heavy causing much national resentment and attracting too many to come here from other countries. Yet, on all these three counts, the truth is the complete opposite.
As my noble friend Lady Stroud pointed out, 125,000 people await an asylum decision. With our current labour shortages these numbers, if allowed to work, would considerably boost our economy; that is also well recognised. Far from fear and resentment, there is wide national approval, with over 70% believing that asylum seekers in the system longer than six months should have the right to work.
Thirdly, there is the specious claim that the right to work after six months might lead to an unmanageable intake of asylum seekers in the first place. Yet, not least as stressed by the Government’s Migration Advisory Committee, these is little evidence to back up that assertion. Instead, the main reason for asylum seekers coming here is the need to escape from intolerable circumstances in their own countries, as we are now witnessing through the thousands of Ukrainians fleeing from war. For all these reasons I hope that my noble friend the Minister will be able to accept this amendment.

Baroness Ludford: My Lords, the arguments have been put very well and very strongly. I am very pleased to co-sign the excellent amendment in the  name of the noble Baroness, Lady Stroud. Her speech was really excellent. Others have demolished the pull factor argument and I do not wish to say any more on that.
The noble Baroness, Lady Williams, said in Committee:
“To relax the policy would be totally to undermine everything that the British people voted for in 2019”.—[Official Report, 3/2/22; col. 1062.]
This has really nothing to do with Brexit, but the noble Earl, Lord Dundee, just quoted a statistic of 70% of people supporting asylum seekers being able to work. That is quite similar to a YouGov poll today which says that 77% of the British public support relaxing visa restrictions on Ukrainian refugees, refuting the idea that the public do not appreciate these arguments, whether it is about refugees or, in this case, asylum seekers.
This is not a partisan proposal; it has been said that it is thoroughly Conservative—I would like to say it is thoroughly Liberal Democrat or Labour as well—but it is not of itself party political. To us, its proponents, it is a win-win. It enables asylum seekers to stand on their own two feet, support their families, pay tax—that is the economic side—and to help them integrate. I cannot remember whether I quoted it in Committee, but I saw a statistic that said that if asylum seekers do not get that sort of flying start—and of course those who do not qualify for refugee status will have to be removed in the normal way, whether they have been working or not—it can take 10 years to recover from a period of initial deterioration. People’s mental and physical health, their self-regard and ability to mesh with their community is so damaged by not being able to work in an initial period that it takes a very long time for them to recover, and that harms the host society.
I do not believe that the Government are on the same page as public opinion on this one. It really it not logical. If the Government were able to meet the target, which they are failing at horribly, to make an initial decision within six months, then this proposed new clause would not come into effect, because the right to work comes into effect after six months. There is nothing to fear if the Government actually put their resources into frontloading the system—as so many of us have argued for ad infinitum.
Accepting this amendment is a no-brainer, and the noble Baroness has got a considerable brain, so she is going to find it quite difficult to refute the truly heavy arguments for this amendment.

Bishop of Chelmsford: My Lords, I give my strong support to Amendment 30 in the name of the noble Baroness, Lady Stroud. She has eloquently made the case for this amendment, so I do not intend to take a great deal of the House’s time, but I wish to add a few brief remarks in support.
At Second Reading, I raised the question of how different our migration policy might be if we stopped looking at asylum seekers as either victims without agency or criminals seeking to exploit us and instead as future citizens and neighbours. In this light, the right to work for asylum seekers who have waited six months or more for a decision represents an excellent opportunity. It would be good for asylum seekers and  for the soul of this nation. Such people are often left without agency or dignity. Their identity becomes limited to a sort of victim status. Being unable to work leaves them dependent on the state or at risk of falling in with illegal labour exportation.
Legal employment represents a chance for people to contribute to their own welfare and that of the common good. It is a way for them to bring their skill and efforts to their new communities, to make friends and to integrate. It provides an opportunity for others to meet and understand these newcomers, and to see them as willing contributors rather than chancers or criminals.
Work is not just a means to a wage or an economic benefit to a business and a community—although, as we have heard, it might be all these things—but innately social. It is activity done with and for others. It is a contribution to common life. That is something we should look to foster and encourage, as it is a means of building stronger ties of fellowship, stronger communities and stronger citizens.
This argument has been advanced before in this place and has been rejected. However, with new recommendations from the Migration Advisory Committee and the sense of momentum we can hear in the House this evening, I hope we might be able to make some progress.

Lord Bethell: My Lords, I support Amendment 30. My noble friend Lady Stroud has put extremely well the reasons why this was never a good policy. On basic Conservative principles—that the route out of poverty and into prosperity is through work—this measure fails dismally. It was never good even when it was first brought in. I concede that maybe the people who brought it in thought it would give them some kind of credibility in the public eye that they were being tough on migration, and that maybe 20 years ago it looked like we faced the end of history. But both those things are no longer true, and if we look just a little down the line to the future they will be emphatically not true. As a number of noble Lords, including the noble Baroness, Lady Lister, pointed out, the public are strongly with us on this. The sight of Ukrainian refugees coming to Britain looking for sanctuary will only increase that.
We have not seen the end of history. I am afraid we are going into a very turbulent period of history where refuge and asylum will be sought by hundreds of thousands of people around the world. We will we face an enormous debt to our neighbours to try to provide them some form of sanctuary. We already have 125,000 people waiting over six months for a determination. What kind of number do we need to get to before we change the system? I hope the Minister will use this opportunity to review a bad policy, to move on and to develop a better policy that is suited to the future.

Baroness Stowell of Beeston: My Lords, my noble friend Lady Stroud makes some very strong and compelling arguments in favour of her amendment. I certainly take the view that asylum seekers should indeed be allowed to work as soon as possible once a decision has been made about their application. I think the citizens of this country would support that and want  that very much. However, a matter that would raise concern for people would be if we introduced a law that allowed asylum seekers to start work before a decision on their appeal—or rather their application for asylum—had been decided.
Rather than support my noble friend’s amendment, I ask my noble friend the Minister what the Home Office is doing to deal with the backlog of applications for asylum currently sat in the system. My noble friend Lady Stroud referred to the number: 125,000. What more resources is the Home Office applying to become much more efficient and effective in processing those applications? To me, that is where we should focus our effort—not on introducing a law that would mean that asylum seekers are automatically allowed to work before a decision has been made on their status in this country.

Lord Marlesford: My Lords, I strongly support my noble friend Lady Stroud’s amendment for one simple, overriding reason. One of the big problems of handling the big numbers involved—125,000, as we have been told—is morale. One of the crucial elements of morale is hope. If people do not have hope, they really do deteriorate. The loss of hope for a long time is a terrible thing to inflict on anybody.
As to whether their employment can be accommodated, there is one obvious area where there are limitless opportunities to do something that would make people really feel part of the country and would remain for ever: the whole field of conservation. An enormous number of projects could be carried out; they would be exciting to do and very fulfilling. I certainly hope the Government accept my noble friend’s amendment.

Lord Kerr of Kinlochard: I hope the Government accept the amendment from the noble Baroness, Lady Stroud, which clearly is supported all around the House. I believe it is supported in the higher ranks of the governing party. I quote from no less an expert than Mr Dominic Raab in the Spectator from 2 October:
“If they learn the language and they can work, they integrate much better and they make a positive contribution.”
Correct.
The noble Baroness, Lady Ludford, said it is a win-win. No less an authority than the Adam Smith Institute and Bright Blue said that asylum seekers pay increased tax and national insurance revenue and we pay them a lower asylum support payment, and that it is a win for the Exchequer. These are very Conservative arguments, and they happen to be true. It is a win for them and a win for us. I hope the Government accept the amendment.

Baroness Hollins: My Lords, I rise to speak to Amendments 30A and 84A, but I also support the amendments from the noble Baroness, Lady Stroud, and I will explain why as I introduce these two amendments.
I first thank representatives from the Royal College of Psychiatrists and the Helen Bamber Foundation for their support of these amendments. The proposed new clause in Amendment 30A would make provision for the Secretary of State to
“commission a review of the processes and services”
that will be in place and their impact on
“the well-being of refugees and asylum seekers.”
We know a great deal more about the long-term impact of trauma on people’s mental and physical health, their memory and their ability to make sense of their experiences, adjust to a new situation, engage productively in work, advocate for themselves and avoid being retraumatised. The very system designed to protect them, whether by poor design or by poor execution, risks worsening the health of refugees and people seeking asylum, and increasing their vulnerability.
With respect to work, there is evidence that people with mental health problems of any sort who are out of work for more than six months have real difficulty getting back into work—ever. This is a really key, important point. Research by the Royal College of Psychiatrists has evidenced that people with significant mental illness, as well as those with evidence of torture or sexual or gender-based violence, are being detained despite their mental health-related vulnerabilities, and that their mental health is deteriorating further in immigration detention. This remains the case, despite the statutory guidance on adults at risk and associated caseworker guidance introduced by the Government in response to the highly critical Shaw report.
The health needs of refugees and those seeking asylum require close multidisciplinary working, continuity of care and a regular review of these processes to ensure that, unlike what happened in Napier barracks, these systems are working in the way intended. I urge the Minister to commit to a review of the processes and services in place with regard to the well-being of refugees and asylum seekers, carried out by a body with the necessary expertise.
Amendment 84A proposes the need for a code of practice for professionals involved in the assessment and care of people seeking asylum, which ultimately aims to provide fairness, consistency and protection for people in these vulnerable situations. In seeking to require the Secretary of State to prepare and issue one or more codes of practice for the guidance of immigration officers, medical inspectors and other persons involved in the assessment and care of people seeking asylum, the objective is to regularise a process that at the moment displays somewhat haphazard approaches to the health and well-being of people in such vulnerable situations. Given the numerous agencies—public, independent and third sector—and a variety of sources of guidance, perhaps this is not surprising. The Home Office has a role in providing and maintaining a framework to ensure that its various agent bodies do not fail to assess and address the health and care needs of people arriving here, by whatever means, nor fail to assess, prevent or delay the development of health and care needs after their arrival.
Mental illness can influence the ability of asylum seekers to present their claims in a coherent way. The assessment of credibility is a fundamental aspect of the asylum decision-making process, whereby people seeking asylum are required to prove the existence of a well-founded fear of persecution if returned to their country of origin, based on any of the grounds prescribed  by law. The decision-making immigration officer needs information to make their decision, but they may be faced with a person with symptoms associated with mental health disorders and the mental health effects of trauma, such as memory loss, inability to express or even feel emotions, or profound guilt and shame at what they have experienced. It is vital that those interviewing them have a sufficient understanding of the effects of trauma on memory and disclosure and how to consider this when deciding the outcome of an asylum claim.
As I said in Committee, these are people with complex health needs. They are not just like any other patient in the NHS; they have had very difficult experiences and have difficult mental health needs. It is difficult for them to try to explain their trauma to the first interpreter or the first person assessing them that they meet. It can take years for people to be able to trust sufficiently. This is not just about having an assessment and a conversation; it is about a relationship of trust. It is intended through this amendment that the mental health, mental capacity and physical health of asylum seekers and refugees are assessed and considered properly on arrival and throughout the asylum claim processes, and that the treatment and care of asylum seekers and refugees is sufficient to ensure their health and well-being. Through this, they will be in a better position to engage with the asylum processes and later, if their claim is successful, to integrate.
The assessment and identification of mental health problems requires appropriately trained staff, as well as close multidisciplinary working. The treatment of mental illness requires multidisciplinary, holistic approaches and continuity of care. A code of practice would be of benefit both to professionals and to those seeking asylum, and I urge the Minister to accept this amendment.

Lord Hodgson of Astley Abbotts: In following my noble friend Lady Stroud, I shall plough a lonely and, I fear, unpopular furrow by suggesting to the Minister that we ought to reject this amendment. I greatly admire my noble friend Lady Stroud for her commitment and the work that she has done in these areas, but I still think that her amendment should be rejected. As my noble friend Lady Stowell pointed out, of course these are asylum seekers whose cases have not been determined. Some of them will be asylum seekers, and some of them will not find their case, and they will become in effect economic migrants. I absolutely accept that the time that it is taking to determine the cases is very long and debilitating to all parties concerned, but I am concerned because, if we allow people to use the asylum route as a means to move forward faster, it is at the expense of those who wish to come here as economic migrants from the beginning.
Secondly, I do not accept the argument that forum shopping—looking around for the best place to make your future—is not a factor. Of course, it is not in every case, but it is a factor. I will not weary the House at 10.20 pm with the list of things, which run from the diasporas to the respect for individuals, the chance to learn English, flexible labour markets, and so on, but they are undoubtedly factors that encourage people to come here.
Nearly every case that I have heard being made now is based on the economy, and the economic prism is undoubtedly an important one, but there are prisms other than that. The impact of each one of us—whether we have just arrived here, seek to come here or have been here for some time—is not just about our economic performance. We make demands on our society of a house, a school, a hospital and a place for our children to play. We have an impact on the green belt, the availability of open space and our future food and water security in an increasingly uncertain world. We expect, overall, that between now and 2040 there will be another 4 million people in this country.
Members of your Lordships’ House have talked about public opinion and where it stands on the issue, but I can tell your Lordships that 71% of people believe that this country is already too crowded and that the Government do not have any plans to deal with the challenges that that causes. If you reset that polling so that it just asks the minority communities, 61% are still equally concerned about the prospects that lie ahead not for us in this House but for our children and grandchildren, if we do not take steps, wherever we reasonably can, to ensure that the growth of population in this country is limited as far as possible. With the best will in the world—I accept the good intentions of my noble friend—her amendment does not tick that box. It encourages the growth of population; it does not discourage it.

Baroness Bennett of Manor Castle: My Lords, I point out to the noble Lord, Lord Hodgson, that the whole point of the amendment is to ensure that people who may be making demands on houses, schools and hospitals can also build those houses, staff those schools and provide care in those hospitals. Briefly, I want to add “Green” to the list of of parties mentioned by the noble Baroness, Lady Ludford, that support the right to work for asylum seekers. Indeed, I can date that back to at least 2006, when I joined the Green Party. Pretty well the first event I went to was one hearing from refugee women who expressed their desire for the right to work and were very pleased that that was Green Party policy.
I am well aware that the Minister is far more likely to listen to voices behind her—and I urge her to do so—then she is to me, but I point out that the six-month restriction on the right to work was brought in by the Labour Party in 2002 and strengthened in 2005, so the Government would be reversing a Labour policy.
Finally, as I often seek to do in your Lordships’ House, I reflect the voices of the people most affected, who are calling, as the hashtag goes, to “Lift the Ban”. A man called Mahmoud was recorded by Asylum Matters. He said: “It would make our lives meaningful and useful at the same time if we could work.” Please listen to that voice.

Bishop of Durham: My Lords, I fully support the amendment from the noble Baroness, Lady Stroud, and my noble and right reverend friend behind me here supports it as well. I will speak to the amendment from the noble Lord, Lord Coaker, and the two amendments from the noble Baroness, Lady Hollins, which I fully support.
We may have 125,000 asylum seekers but let me focus on two. This is why I support both amendments. One is an asylum seeker who lives in my area who heard from the Home Office within the first three weeks of arrival then heard nothing for 12 months, in spite of inquiry after inquiry. That is why we need a code of practice. That is why we need better ways of working. It beggars belief what that says to him about how he is seen in our society and by our society. That is, of course, told time and again.
The second case is an Afghan who came out last summer on the planes and whose family is still in hiding in Afghanistan. Last week they were hunted by the Taliban; they escaped. He sent me through last week the letter he had just received from a Home Office official. It is four lines long, giving him the number that he has been allocated, with not one jot of sympathy about what he might be facing.
I accept that the official will not know or be able to verify the story that I have heard but the processes themselves do not treat people as people. They treat them as case numbers. We need the kinds of provisions that the noble Baroness, Lady Hollins, has proposed and we need to deal with these cases much faster. That means we employ more people and we upskill them. That is why I support the amendment from the noble Lord, Lord Coaker. The right to work falls away, as the noble Baroness, Lady Stowell, noted. That is not going to happen in a hurry, so we need the right to work now but we also need the other provisions.

Baroness Hamwee: My Lords, the argument from the noble Lord, Lord Hodgson, seemed to be addressed more to refugees than asylum seekers and I think that almost everyone who has spoken about the right to work of asylum seekers has urged faster decision- making. I want to speak to the two amendments in the name of the noble Baroness, Lady Hollins, to which I have added my name.
The House has heard many noble Lords stress the importance of a trauma-informed approach and the difficulties of almost every asylum seeker, I would have thought, in telling their story almost as soon as they get here after dreadful experiences. It must be dreadful, even if the journey is quite straightforward, to tell the story coherently and fully. I fear the Home Office has not yet got it.
The Minister wrote to me last week on the interpretation of “without delay” and I thank her for that. She has had an awful lot of letters to write during the course of the Bill. The official who wrote this one said that
“if someone was fearful of acknowledging their homosexuality to the authorities, then it may be reasonably practicable for them to make a claim some time after arrival, as we recognise the extremely difficult process of coming to terms with one’s own sexuality.”
If an asylum seeker has experienced what we know in some countries people experience because of their sexuality, I do not think that “coming to terms with one’s own sexuality” begins to describe it. That is why these amendments are needed.

Lord Green of Deddington: My Lords, I will very briefly speak to Amendment 30 and say that I very strongly agree with the remarks of the noble Lord, Lord Hodgson, who I thought said some very valuable things.
I would like to say and make it clear that I am actually in favour of asylum. I believe that it is absolutely right in principle but I find in this debate and more generally that there is something of an assumption that all asylum seekers are genuine and, frankly, they are not. Indeed, the very careful process that they go through finds that nearly half of them are not accepted as asylum seekers.
The risk of moving this to 12 months is that some applicants—those who are not genuine, of course—would have an incentive to spin out their cases until they reach the six-month point, which would not be too difficult, and then they are here and that is it.
The noble Baroness, Lady Stowell, hit the nail on the head. First, what we must avoid is the possibility of work before acceptance as a genuine refugee. Secondly, that points to the need to speed up the process, which is what is causing all this difficulty. If we could get the cases resolved in a reasonable time, those who really deserve it would get it—and good on them—and those who do not would be in a queue to be removed.

Lord Coaker: It is good to see the Chamber filling up, despite the fact that it is me speaking.
I speak in support of all the amendments in this group. I am interested in supporting the amendment of the noble Baroness, Lady Stroud—I am going to be a Conservative—but I welcome the noble Baroness, Lady Stowell, and the noble Lord, Lord Hodgson, clearly speaking in support of my amendment. It is good to see them supporting a Labour amendment, so it is interesting here.
The really serious point about the amendment was made by the right reverend Prelate the Bishop of Durham. I apologise to the Chamber because I really should have put this down in Committee. It is more of an amendment for Committee than for Report, but it goes to the heart of the problem that we are trying to deal with. I do not agree with the noble Lord, Lord Green, on much, but he often makes the point that, until the administration of the asylum system is sorted out, we are trying to knit fog. That is the basic problem. The Government are chasing this, as the previous Labour Government did, and there is a real problem with respect to it.
The example that the right reverend Prelate gave could have been given by most people in this House. As a Member of Parliament, I could have given example after example of people who have come here and claimed asylum and the system has lost them. Then they reappear a few years later, having been to school. It is unbelievable quite how the system has allowed them to operate and work within it, yet officially they are not supposed to be here; their claim is still supposed to be being sorted out.
My Amendment 53 is simply a way of trying to say that, unless we get a grip on this, in the next year there will be another asylum Bill and in two years there will be another. And then the Labour Government will come in with another asylum Bill. The reality is that, while each and every one of us is motivated by the desire to do the best thing by those fleeing persecution,  in the way we have seen with refugees, the system simply cannot find a way of dealing humanely and properly with people who seek asylum in our country. You get euphemisms about accommodation centres, et cetera, and people having to report on a regular basis—all those sorts of things. That is why the business of being able to sort out whether people have a legitimate claim and are accepted by the system as asylum seekers or refugees, or not, is so important. That goes to the heart of it.
I apologise to the Minister because, as I say, this is a debate for Committee rather than for Report. I have no intention of voting on it; I just got frustrated with the fact that each and every one of us was chasing our tail trying to deal with a system which, by the Government’s own admission, is broken. They are trying to fix it but in a way which makes many of us say “We understand there are problems, but the way you are trying to fix it won’t work and we will be left with the same situation”. That is why I support the amendment of the noble Baroness, Lady Stroud. She very articulately and powerfully argued the point as to why it is important to give the right to work to people who are still awaiting their decision after six months.
I agree with the right reverend Prelate the Bishop of Durham: you could say that, if the Government adopted Amendment 53, it would be a real incentive for them to get their act together, so that they did not have the situation where people had the right to work even though their decision had not been made, in the way that the noble Baroness’s amendment would indicate. I think it was the noble Baroness, Lady Meacher, who pointed out that country after country has different arrangements with respect to the right to work and does not have the same problems as we do. I very much support that.
I want to highlight one aspect rather than repeat everything that the noble Baroness, Lady Stroud, has put so ably—and other Members have supported her amendment. My point is this: the Government will oppose this amendment on the basis of the pull factor; they have no evidence for it, but that is exactly what they will do. The last Labour Government did exactly the same thing in 2002 and 2005 because they were persuaded by the argument that there must be a pull factor—there just must be. As the argument went, asylum seekers will come here, they will be able to work, they will tell all their friends and family and they will all pile over here, as it is easy to get in, they will be able to work and do the jobs and they will be well paid, whereas, actually, they will be in the hidden economy and half the time people will not even know that they are working. That will be the argument. They will put it in much better English, much more articulately, much more in civil servant speak—but that is what they mean.
I do not know what the politically correct term is any more, but the Government set up these false windows, where they put up their hands or palms, and say, “This is what we are having to go through: the Government are having to stand up to a middle-class establishment elite”—as represented by your Lordships, including me—“and we are battling through this because, in doing so, we are representing public opinion as evidenced by the fact that we won the 2019 election.  Public opinion is on our side, so this is a necessary pain we have to go through.” That may be right on one or two things, but on this it is fundamentally wrong. That is not where the public are on this.
There is only one thing on which I slightly disagree with the noble Baroness, Lady Stroud: I think it is not about integration but, more importantly, about social solidarity. As it has been articulated, it is a belief that when people have been here a certain amount of time, they should work. That is what people think; that is the general view of the public. If the system has not sorted out whether they should be here but they are living in our country and our housing and things are being provided for them, they should work. That is what people think. I do not care whether it is a car mechanic, a brain surgeon, somebody who is out of work, somebody in the north or the west of the country—whoever; that is what they think, and it is what I think.
It is reasonable for people to expect that. People do not say, “I tell you what, they shouldn’t work because there’s a pull factor.” That would be ridiculous—it is just not true—but I do think that people look down their road, or across the road, or in the village next to them, or on the farm or in the supermarket and, when there is a problem, they say, “Why don’t those people who have come from wherever, who are awaiting a decision—why can’t they work? Why can’t they do it?” I have never heard anybody say, “They can’t do it: it’s a pull factor.” It is just nonsense; it beggars belief.
I wanted to highlight that because, for me, it goes to the absolute heart of it. People would expect those people to work. I agree that it is good for asylum seekers themselves and their family to contribute to a country in which they hope to have permanent residency, providing they go through the necessary checks, but the community around them expects that as well; and that social solidarity and human dignity is everything. That is why I support the amendment from the noble Baroness, Lady Stroud. Alongside that, I think that Amendment 53 is important, and the Government will have to get this sorted out. Otherwise, we will be knitting fog again in another year or two.

Baroness Williams of Trafford: My Lords, I thank all noble Lords who have spoken to this group of amendments. I am grateful to my noble friend Lady Stroud for bringing Amendment 30. The issue has been much debated and it hinges on two issues really: the integrity of our immigration system and pull factors. I want to correct a figure that has been mooted a couple of times this evening: there are actually 81,000 people awaiting an initial decision, not 125,000, but it is a large number nevertheless.
A more relaxed asylum seeker right to work policy creates a back door into our labour market. We have just set up a world-leading economic migration scheme, which provides ample opportunity for people of varying skill and educational levels to apply to come and work in the UK. In fact, this scheme was a core manifesto commitment; it was not about Brexit. However, we cannot afford to turn around and offer people the opportunity to undercut it through simply lodging an asylum claim. Our policy is a constituent part of a whole; it does not operate in isolation. As my noble  friend Lady Stowell said, someone who comes to the UK and is found working illegally can claim asylum as a way to prevent removal and then get the right to work. That does not seem logical to me.
I will repeat that, where reasons for coming to the UK include family or economic considerations, applications should be made via the relevant route: either the points-based immigration system or our various family reunion routes. We know that people want to work in the UK. Why would they not? We have a strong economy and labour market. That is why we cannot discount the risk of even more channel crossings if we relaxed our asylum seeker right-to-work policy. This issue has been debated at length in the past. However, I want to be clear that the motivations for fleeing one’s country of origin—of which noble Lords are well aware—and the motivations for moving from one safe country to another are not the same.
According to a 2009 article by Norwegian academics Jan-Paul Brekke and Monica Aarset, there is a hierarchy of considerations which migrants make when choosing a particular country. The first is, of course, that it is safe. The second—more important even than family networks—is the existence of future opportunities, which include:
“the welfare state, education, the jobs market and good conditions for bringing up children.”
These are things which are shared by all northern European countries, including France. This importance of future opportunities is clear through similar academic literature on secondary movements, in which economic considerations, including the ability to work, are consistently cited as a primary factor in choices about moving from one safe country to another. I am afraid that noble Lords continue to conflate reasons for leaving countries of origin with reasons for making those secondary movements, which is misleading and unhelpful for the purposes of this debate.
Noble Lords will be aware that the French cite the ability to work as a pull for those making channel crossings. Whether that is about the availability of work in the shadow economy or not is actually quite irrelevant. The point that we are being told by senior French Ministers is that these people are motivated to move from one safe country to another because they want to work. This was reiterated in a sobering BBC World Service investigation into the tragedy in the channel last November. Through deep research into the lives and families of the victims, the journalists ultimately found that they were all motivated to come to the UK from France for economic reasons. The solution here is to decide cases more quickly, and that is what we are doing through the wider new plan for immigration. I hope that this has been a good explainer of the background.
My noble friend Lady Stroud said that 71% of people think that the right to work is a good idea if people are waiting for a decision for six months or more. I would counter this with a YouGov poll from October of last year which showed that only 45% thought that the right to work was a good idea. This takes the issue completely out of context and ignores the bigger picture concerns. In light of the fact that 73% of people thought that illegal channel crossings were a serious issue,  50% of people thought that the UK does not have a responsibility to protect people—against 35% who thought that they did. In addition, 65% of people thought that Britain should refuse to accept asylum applications, and 55% thought that the current approach of the Government to small boats was too soft. I say that this Government have a clear mandate to ensure that there is no incentive for people to make secondary movements across the channel where academic evidence suggests that many do it for primarily economic reasons.
The noble Baroness, Lady Lister, and the right reverend Prelate the Bishop of Chelmsford talked about addressing the integration needs of asylum seekers. Of course, that is absolutely true, but not all of those who seek asylum are found to need international protection. As the noble Lord, Lord Green of Deddington, said, 50% of asylum seekers are refused even after appeal, so that spells that out.
A right to work would start to cause further delays in the system by adding further requirements, as we would have to issue new paperwork to determine whether the person had completed all the way through, and then remove the right if they were subsequently refused. Also, individuals would have to provide their own accommodation and meet utilities et cetera, and then we would need to remove them from asylum-supported accommodation for obvious reasons.
My noble friend Lady Stroud made the point that allowing asylum seekers to work prevents them resorting to illegal working. Asylum seekers can receive support until their claim and any appeal is determined. They are also allowed to undertake volunteering activities, but these must not amount to job substitution. My noble friend also asked whether we are considering any policy change to support the ongoing worker crisis in the UK. We are offering time-limited visas to certain cohorts, such as HGV drivers, poultry workers and butchers, but it is a temporary emergency measure which recognises the extraordinary set of circumstances facing the UK food supply chain.
My noble friend and the noble Baroness, Lady Meacher, talked about us running the toughest policy in Europe. Looking more closely at European countries is instructive: Austria allows asylum seekers to work after three months, but they are restricted to seasonal roles on a six-month visa in forestry, tourism and agriculture. In France, the right to work is permitted after six months, but is contingent on having a work permit, which itself requires a job offer, meaning in practice that many asylum seekers in France cannot work.
On Amendments 30A and 84A, in the names of the noble Baronesses, Lady Hollins and Lady Hamwee, I could not agree more that the well-being of asylum seekers is an important issue. I agree that, undoubtedly, some refugees and asylum seekers will have medical needs or, indeed, issues around social care, and that it is important to ensure that they are not at risk of abuse or neglect. But these basic health and care needs are no different from those experienced by many UK citizens and, because of that, asylum seekers and refugees are entitled to access medical services, including those  related to mental health, trauma or medical assessment that are provided by the NHS, in the same way as British citizens and other permanent residents.
It is already open to the Secretary of State to commission a review of any part of the immigration system. I can point to recent examples of this: the UNHCR carried out an audit of Home Office procedures around the issue of statelessness in December 2020, some of the findings from which helped to shape changes to things such as training and the quality assurance framework that we operate. Noble Lords will also be aware of the role of the Independent Chief Inspector of Borders and Immigration.
Finally, turning to Amendment 53—noble Lords will be delighted to hear that I am about to wind up—I remain entirely sympathetic to the intention behind this proposed new clause, which aims to reduce the time individuals spend waiting for the outcome of their asylum claim, which is what we all seek.
We are clearly at a time of change to our asylum system. This goes to my noble friend Lady Stowell of Beeston’s point. The new plan for immigration brings about a suite of measures designed to reduce abuse of the asylum system, improve efficiency within the system and focus resources on those most in need of support. At this time of change, we cannot commit to a particularly restrictive limit on determining asylum claims, which could rush decision-makers as they come to grips with new policies and inevitably lead to an increase in legal challenges, which take decision-makers away from determining claims and increase costs for taxpayers.
There are, of course, justifiable reasons why deciding claims might take longer than six months. These include, but are not limited to, modern slavery considerations, and mental and physical vulnerabilities. There is, of course, also a cohort of people whose very purpose is to frustrate the asylum system. This causes delay to the system and is one of the things we are trying to address through the Bill.
I am sorry to have given such a long-winded response, but I hope that, with my explanation, noble Lords will feel happy not to press their amendments.

Baroness Stroud: My Lords, I thank everyone who has contributed to this cross-party debate for their insightful and well-argued remarks. The comment of the noble Baroness, Lady Lister, that ConservativeHome is her new favourite reading, was the revelation of the evening. I felt that the remarks of the noble Lord, Lord Coaker, on social solidarity hit the nail on the head.
I heard the Minister’s response. She used the twin argument of the integrity of our Immigration Service and pull factors to dismiss Amendment 30. Across the House, I thought we were able to pretty much rebut the right to work being a pull factor. The integrity of our Immigration Service is questionable too, when other European nations, Canada, Australia and all the other nations mentioned by the noble Baroness, Lady Meacher, can maintain the integrity of their immigration services and not reject the right to work for asylum seekers.
Like all of us across the House, I believe that if we are to become the nation I know we are meant to be, with well-managed borders but a respectful and compassionate asylum system, this amendment can  contribute much to creating such an environment. As we have heard in the contributions this evening, the right to work for asylum seekers after six months is a policy that is economically, socially and politically advantageous. It confers dignity on those who have sought safety here and, as we have heard, there is little to no evidence that it creates pull factors. It would also help the Home Office with pressure on its claims system.
I believe that there is support in the House for the amendment and that, even at this hour of the night, it would be appropriate to test the will of the House.
Ayes 112, Noes 89.

Amendment 30 agreed.
Amendment 30A not moved.
Consideration on Report adjourned.
House adjourned at 11.06 pm.